On April 22, the House Regulated Industries held a surprise hearing on HB2121, the House version of the Texas SDMCA. It wasn't a coincidence that the MPAA lobbyists had flown in that morning.

Last Wednesday, the MPAA lobbyists flew back to DC. We helped send them home.

Here's a bit of history on the bill's last days and some thoughts on the EFF-Austin efforts.

The bill was defeated on a point of order -- a technicality -- on Monday night on the House floor. The bill analysis didn't match the content of the bill. Points of order don't happen by accident. Members bring points of order when they oppose the bill, and they're not positive they have enough votes to win. It takes substantial support to sustain a point of order.

The bill was in the queue to return on Tuesday, as an amendment to SB1952, an omnibus government re-org bill where the sponsor was taking any and all amendments (somebody called it "a Christmas tree bill.") But the clock ran out at midnight, after only 100 of the 500 amendments in the queue.

We don't know for sure what would have happened if there was a debate. We do know for sure that there was strong opposition to the bill, from left, right, and center, due to our efforts and the efforts of technology industry allies, to educate and inform members.

In the last few days of the session, a team of eight EFF-Austin/ACLU-Texas volunteers visited all 150 house members' offices, many of whom hadn't heard of the bill before we arrived. Many more volunteers wrote, faxed, and called legislators. Volunteers got the word out to other technology user groups. A number of legislators mentioned they'd been getting constituent calls against the bill.

Our efforts helped kill the bill. Thanks tremendously to everyone who participated.

We formed a powerful alliance with ACLU-Texas, which is one of the largest and most successful grassroots lobbying groups in Texas. The ACLU had a Cyberliberties project, but the team lacked strong technology background. EFF-Austin had technology expertise and passion for preserving civil liberties related to technology. ACLU folks taught us the ins and outs of lobbying, and worked on the bill at critical moments.

This is going to be a long list, and I'm going to leave people out by accident, so write in the comments, or send me email and I'll update the list

Thanks to:

• Doug Barnes, for legal analysis and testimony under fire.
  
• Kathy Mitchell, sargeant of the ACLU legislative team, for teaching us everything about what to do.
  
• Randy Zagar, Wayne McDilda, Ann Del Llano, and Paul Elliot for testifying at committee hearings; Chip Rosenthal for putting in a card and staying til midnight
  
• Jon Lebkowsky, Frieda "Ms G", Paul Elliot, Randy, and others for keep the website up to date and notifying allied groups
  
• Chip Rosenthal, Randy Zagar, Jon Lebkowsky, Don Turnbull, Tom Morin, Renako Godfrey, Jim Weiler, Ann Del Llano, and Will Harrell for legislative visits.
  
• Everyone who called, faxed, and wrote legislators
  
• The lobby teams at TI, TechNet, the Consumer Electronics Retailers' Association, and Consumer Electronics Association for providing critical industry opposition to the bill.
  
• Ed Cavazos, for the advice to reach out to industry allies
  
• Gene Crick at TISPA, Tim Morstad at Consumers' Union, and Smitty at Public Citizen, for being allies and providing help in critical moments.
  
• Folks in grassroots groups in Tennessee, Georgia, South Carolina, Florida, Michigan, and Massachusetts, who shared tactics, materials, and war stories
  
• Fred von Lohman, of EFF National, for legal advice and support
  
• The teams at Public Knowledge, EFF, and Digital Consumer, for help in co-ordinating opposition across the country; and for the EFF and Digital Consumer fax banks
  

We can't relax forever. The MPAA says they'll be back.

There's a team here waiting for them.

Here's an article about the Tennessee SDMCA fight. (The Texas SDMCA bill, SB1116, failed to pass during the legislative session just ended, thanks to the persistent efforts of EFF-Austin's Adina Levin, who'll have more to say shortly). The MPAA lobbyists are famous for quotes like this one from Van Stevenson in Tennessee: "Neither the cable companies nor the MPAA would ever attempt to outlaw legitimate consumer devices. That's just absurd." If that's the case, why does the MPAA resist attempts to revise the bill so that it's specific to the case they say they want to address? Given the legal and lobbying expertise the MPAA can and does pay for, we can't believe that the bill is accidentally vague and overreaching. [Link]

"As originally worded, the bill was so broad and vague that every citizen who legally used a communications service would've been in violation of the law," says Scott Kozicki, chairman of the Tennessee Digital Freedom Network (www.tndf.net), an ad hoc group formed to fight the legislation. (Thanks again to eagle-eyed Tom Morin for the pointer to this story.)

The bill would even make it illegal to connect your Internet service to a home network without the explicit permission of Comcast or whoever else provides your Internet service, says Luke Kanies, a local Unix consultant. In fact, you could be fined up to $10,000 a day for every device Comcast hasn't explicitly authorized, including MP3 players and even speakers and monitors, Kanies maintains.

Discuss Tennessee SDMCA

We're still waiting to hear what's happened with SB1116, the 'Super DMCA' bill. If it passes, it won't be because we didn't make our best efforts to block it, and we appreciate the efforts of everyone who devoted time and energy our legislative efforts. The other bill of interest to EFF-Austin, SB1579 in support of Open Source, didn't pass, but its sponsor, Senator John Carona, suggested during the hearing that he would be back next session with an even stronger bill.

Kudos to Adina Levin (SB1116) and Chip Rosenthal (SB1579), who organized our teams to educate legislators about the bills... and to ACLU-Texas, especially Kathy Mitchell, who supported our efforts with information and energy.

I made my own second round of visits at the legislature today with Don Turnbull, who was also going in for the second time. Tom Morin was there, too: his first round. It's clear to me now that talking to the legisature works. It's hard and you may not win all the battles, but they have to give you at least some degree of their attention when you walk in the door, and if you do a good job making your case, you can capture real interest, and this will sometimes make a difference.

Those of you who are interested in impacting legislative process, email info at effaustin.org - we'll be debriefing soon.

Discuss Legislative Efforts

The Electronic Frontier Foundation has published an analysis of DARPA's "Report to Congress regarding the Terrorism Information Awareness Program" (TIA) which characterizes the report as a bust. "The government had an opportunity to open public discourse about TIA; for the most part, it chose to hide behind broad and vague generalities." [Link]

We have no good information about how many mistakes are in these databases; we should be especially concerned by their reliance on inherently fuzzy concepts like "extremist." And yet only recently the Justice Department exempted the FBI's National Crime Information Center (NCIC) database, which provides over 80,000 law enforcement agencies with access to data on wanted persons, missing persons, gang members, stolen cars, boats, and other information, from the Privacy Act requirements of accuracy, relevance, timeliness, and completeness. Why? Because "it is impossible to determine in advance what information is accurate, relevant, timely and complete."

Discuss EFF on Total Information Awareness

"Disabled consumers and their proponents complain that the Digital Millennium Copyright Act (DMCA) severely restricts their access to reading material because most available electronic books lock out text-to-speech software." (Thanks to Tom Morin for the pointer.) Link: ACM | Link: PC World

Discuss DMCA excludes disabled consumers from access to electronic books

Someone with telephone industry experience sent this bit of information anonymously:

Here's another highly relevant piece of case law to look up for the fight
against 1116: The Carterfone (correct spelling) case, I think it was
1967 or '68, and it started in Texas.

Carterfone manufactured inductively-coupled devices that would allow you
to connect your (rented Bell) telephone to your company's two-way radio
system (e.g. truck dispatching system etc.). Bell took action against
them for violating the "foreign attachments" tariffs against non-Bell
equipment, even though the device was inductively and acoustically coupled
(did not make a metallic connection to the actual telephone line).

Carterfone went to court on this and won.

The outcome set the stage for *everything that followed* in the
deregulation of telephony, starting with "station equipment" (subscribers'
apparatus, on the subscriber's premises). It led directly to the
"interconnect industry" in a 1970s precursor to the dotcom boom, and was
arguably responsible for the opening up of data communications that would
ultimately spawn BBSs and lay the foundation for the civilian Internet.

See also:

http://www.patobannon.com/iss08-22.html


http://yarchive.net/phone/carterfone.html

(do a general web search under "Carterfone" and there's plenty more where
these came from)

By popular demand: here's a list of contact info for Texas State Senators. Keep those faxes in the air!

[LINK] Kuro5hin, a site with community written and selected technology news, has just posted an article on HB 1282, the Bad Texas Spam Bill.

The Texas Legislature currently is considering a new Spam Law. House Bill 1282 has sailed through House Committee and is on the verge of being passed out by the Senate Business and Commerce Committee. This would be fine except for one thing: this law would help spammers more than it does their victims.

The Honorable John Carona sponsored SB1579, the Texas Senate bill that encourages state agencies to consider Open Source software. Even after dilution, the bill was still drawing criticism from proprietary software interests. Here's a great snippet from Carona's exchange with Mario Correa of the Business Software Alliance:

Correa: That's no longer... that's correct. But the point that I'm trying to make is, essentially what you've done is to isolate one particular development of software for further investigation, assuming that there isn't something already being considered or the State has already undertaken. What makes our industry nervous is not that you study any particular type but rather that you select one under a presupposition of cost savings or not cost savings for that matter.

Carona: Well, if you'll read the language again, we have already presupposed that proprietary software will exist and will be what's purchased. This simply says shall we consider any other alternatives? That means specifically...

I don't... Again, I don't understand why you all are so threatened by this, but from a careful look at the lobbyists in this room that are representing Microsoft, and all of you here representing proprietary software companies which -- let's face it, that's where the big money is, it's not in Open Source it's in proprietary -- it's rather transparent as to why you all feel so threatened by this language. And I'll tell you, this [bill] is innocuous, but next session I'll be on a crusade.

[Link to full story at NewsForge]

Discuss Senator Carona tells it like it is

A spam bill (HB 1282) has been sailing through the Texas legislature this session. Unfortunately, as currently written, it helps spammers more than it helps email recipients and service providers. We believe if this bill is passed, you may actually see an increase in the amount of spam in your inbox. So, EFF-Austin has done a late-session grab and put this on the list of legislative issues we are following, along with SB 1116 (the Super-DMCA) and SB 1579 (Open Source Software).

This legislature seems to really want to put something into law regarding spam. It's so late in the session, there is no chance we can do a good spam bill. Our only hope is that we can correct a bit of what currently is a very bad bill.

Those of us at EFF-Austin working legislative issues are running around crazy right now, so we aren't going to be able to setup the same support resources (mailing list, info sheet, etc.) that we've got for the other bills. The best source of information is the articles Chip Rosenthal (that's me!) has been weblogging on this issue. They are:

• Bad Bill or No Bill: The Texas Spam Dilemma (May 5)
  
• Bad Texas Spam Bill: Score One for the Good Guys (May 7)
  
• Bad Texas Spam Bill: Ball is in Their Court (May 9)
  

If you are concerned about this bill, please let the Senators know you oppose it as currently written. The most important people to notify are the sponsor, Sen. Robert Duncan (R-Lubbock) as well as the committee members currently reviewing it. With a little luck (and a few faxes) we may be able to turn this around into something that may actually help the spam problem, rather than make it worse.

From: Chip Rosenthal [mailto:chip@unicom.com]

Sent: Thursday, May 08, 2003 6:46 PM

To: sb1579@effaustin.org

Subject: [sb1579] hearing went well





We had our hearing of SB 1579 in front of the Senate Committee on State
Affairs. The hearing went well. In fact, I think we hit a home run.



Sen. Carona has put forward a substitute bill. That means what we've
been looking at as SB 1579 no longer exists. The substitute bill is
much simpler. It just adds the following paragraph to Texas law:

The [Department of Information Resources] shall publish guidelines
relating to the information a state agency must consider in
determining whether the agency should acquire open source software
products in addition to proprietary software products.

While the original bill was directed to state agencies, the substitute
instead targets DIR. That does represent a pretty significant scaling
back, but we're still standing behind it.



There are several things I like about this:

• DIR is already an OSS supporter. They want to see it more widely
  used. This may get them some more leverage towards that.
  
  
• I'm not sure this bill rises to the level of "legislative intent",
  but if it becomes law, it does put onto the books the legislature's
  desire to explore OSS offerings.
  
  
• This bill will result in a study. There will be results from that
  study published about the time we are all thinking about the
  next biennium. A good study could help build momentem towards
  a broader law. In fact, the high point of the hearing was when
  Sen. Carona told the Business Software Alliance they had better
  learn to cope with this bill, because he has even bigger plans
  for two years from now.
  

Because the bill was scaled back and the committee members seemed
predisposed to be favorable, we went very very light on the oral
testimony. The only people to speak were me and Bo Kersey, founder
of VirCIO. My testimony must have been all of 20 seconds, and Bo spoke
for just a minute.



We had two (so-called) resource witnesses, experts available to testify
on the bill. They were Prof. Don Fussell (from Computer Science)
and Prof. Don Turnbull (from School of Info and EFF-Austin V.P.).
Another professor from the C.S. school signed in as a resource. I did
not catch his name ... if anybody knows who it was please send our thanks.
None of the resource witnesses were called to testify, but their presence
added significant gravity to our arguments.



Several of our supporters signed cards. I heard Joe Barr and Paul Elliot
called out. May have been others.



As far as the other side, there were three witnesses to testify.
Basically, they were the industry groups you'd expect. Their testimony
was not well received by the chair.



In all, the committee was receptive to our offering, and very skeptical
of the opposition. I think this bodes well for us.



So, in summary, we did good. But let's not get too cocky. First,
we cleared a hurdle, but there are another good 6-8 such events before
this thing happens. Second, part of the reason for our success is that
the opposition was caught off guard by the substitute. Their arguemnts
were completely inappropriate. If they decide to press the opposition,
they will arrive much better prepared next time.



As far as those many hurdles I mentioned .. the two immediate ones are
the committee vote on the bill (may happen if they get a quorom today)
and companion legislation be introduced in the House. We've made progress,
but there's still a way to go.



P.S. You can watch the hearing yourself once it gets archived to the
web site: http://www.senate.state.tx.us/bin/live.php

I posted that SB1116 is a "bad bill" - here's why:

Before the
TEXAS SENATE
CRIMINAL JUSTICE COMMITTEE
State Capitol, Austin, TX

May 6, 2003

COMMENTS OF THE CONSUMER ELECTRONICS ASSOCIATION
ON
S.B. 1116

I. Introduction

The Consumer Electronics Association (CEA) appreciates the opportunity to provide the
views of the consumer electronics industry concerning Senate Bill 1116 ("An Act Relating
to Theft of Communications Services"). S.B. 1116 was promoted as addressing theft of cable
and Internet service, but this overly broad legislation instead threatens the manufacture,
sale and use of legitimate products such as computers, televisions and personal video
recorders. If cable and Internet service theft is truly the issue, this legislation is
not the solution.

CEA is the leading trade association representing the consumer technology industry. We
represent more than 1,200 corporate members who design, make and sell audio, video, mobile
electronics, wireless and landline communications, information technology, home networking,
multimedia and accessory products, as well as related services that are sold through
consumer channels.

II. Overview

Having been rightfully denied anti-consumer legislation of this sort by Congress, the
Motion Picture Association of America (MPAA) has switched tactics in an attempt to
convince state legislatures to turn honest consumers, retailers and manufacturers into
criminal and civil defendants. In a recent interview, the president and CEO of MPAA even
stated that "Fair use is not a law...in the digital world; we don't need back ups, because
a digital copy never wears out." Given MPAA's views, it should be no surprise that their
model legislation could criminalize normal fair use practices and subject honest consumers
to massive civil liability.

This over-reaching bill is in no way confined to "stealing", even as broadly defined by
the MPAA. The vast litany of prohibited actions includes receiving, acquiring,
transmitting, possessing, retransmitting, manufacturing, distributing,
developing, assembling, transferring, importing, offering and advertising, and even
includes possessing plans or instructions, as well as assisting others in any of those
acts.

III. "Intent To Defraud" Provision Broad And Undefined

S.B. 1116 portends criminal liability for simple "harm" to a communication service
provider, or on a showing of "intent to defraud." Even if the standard is "intent to
defraud," which sounds harder to prove, this bill leaves this crucial provision undefined.
Yet any limitation on exposure to prosecution or civil suit for "theft" depends on these
words. Because an individual's state of mind is difficult to prove, most states have
doctrines of "constructive fraud" which allow proof, even in criminal cases, with no
showing of actual "intent" at all. Under such an interpretation, a consumer who attaches
legal products to a broadband network could be subject to criminal penalties if the device
is prohibited or not specifically permitted by the service contract.

On April 14, CEA recommended to the MPAA that its model legislation should define the
phrase "With Intent To Defraud." The definition we suggested as taken from standard jury
instructions used in cases enforcing U.S. law against the distribution of unauthorized
cable and satellite TV descramblers, which also has an "intent to defraud" standard. This
definition reads:

A conscious objective, desire or purpose to deceive another person, and to induce such
other person, in reliance upon such deception, to assume, create, transfer, alter or
terminate a right, obligation or power with reference to property.

Incorporation of this definition has been resisted in every state and in MPAA's model
law.

IV. "Transmission, " "Retransmission," And Fair Use

CEA has also asked, if this bill is really about unlawful acquisition of a service,
then why does it cover the audio and video programming content as well, and "transmission"
and "retransmission" of such content? These are subjects that are controversial under
federal copyright law and have not been state law issues. Moreover, such transmission
only occurs after a consumer has lawfully acquired the signal or the content, yet the
consumer may still be held criminally liable, or face massive civil liability. This
change has also not been accepted by MPAA or in any state.

With S.B. 1116, manufacturers, retailers and their customers would have to be concerned
about potential criminal status for activities that today they take for granted, such as
use of consumer electronics products over the Internet, or allegedly "unauthorized" uses
on a home network that may be controversial under federal copyright law.

V. Current And Future Technology Devices Broadly Targeted

S.B. 1116 is so extreme as to define devices possessed by one individual as "unlawful"
based solely on subsequent usage by another individual. In other words, if a product is
used by even one person to infringe, any other consumer or retailer in possession of that
product could be subject to criminal penalties. These unknowing parties would then have
to defend against criminal charges based on their "intent" as imputed by their mere
possession or marketing of the products.

VI. Proposed Punishments Do Not Fit The Proposed Crimes

Draconian civil and criminal penalties would be imposed by S.B. 1116 that are
potentially vastly disproportionate to the conduct of the person charged with its
violations. Indeed, the inclusion of potentially massive civil liability has not existed
in theft of services law prior to MPAA's model bill. It appears the real intent is to
intimidate and sue anyone who makes, sells or uses any product that the MPAA or other
content providers do not like or approve of. The impact will be anti-consumer,
anti-competitive and anti-innovation.

Some early suggestions from some consumer electronics manufacturers were accepted in
the MPAA model legislation, but most have not been. Nevertheless, proponents of these
bills have tried to paint them as non-controversial, and have claimed that they
accommodate consumer electronics concerns and enjoy broad support in the industry.
Neither is the case. CEA does not support this bill, and I am informed that the Consumer
Electronics Retailers Coalition, which includes major retailers such as RadioShack, Best
Buy, Circuit City and Sears, also vigorously opposes it. Along with them, and a wide
range of consumer and technology groups, CEA urges the Criminal Justice Committee to issue
an unfavorable report on S.B. 1116.

Respectfully submitted,

CONSUMER ELECTRONICS

ASSOCIATION

By: _______________________

Douglas Johnson
Sr. Director, Technology Policy
2500 Wilson Boulevard
Arlington, Virginia 22201
(703) 907-7600

SB1116, the MPAA-proposed "anticircumvention bill" is making its way through the legislature with none of the parts we oppose removed.

The latest is that the Committee asked EFF-Austin, ACLU and other opponents to negotiate the bill with MPAA, and try to come up with a suitable substitute bill. They said that they would not move the bill until this negotiation had occurred. The negotiation was scheduled for tomorrow, however the committee voted the bill onto the floor today.

Adina composed most of this message, which I just sent to the Austin American-Statesman:

This is Jon Lebkowsky, President of EFF-Austin, an Austin nonprofit that is involved in technology and policy. We have been attempting to stop a bill that the Motion Picture Association of America has been bringing to various states. The bill, masquerading as a theft of service bill, gives cable providers broad control over what end-users do in their homes and businesses. A Senate hearing on Tuesday night showed broad opposition, from consumer groups, civil liberties groups, as well as telephone companies and consumer electronics manufacturers. Only two senators were there at midnight to hear the testimony on this controversial bill. Nevertheless, the bill was voted out of the senate committee in a surprise floor vote today, For more information, contact Adina Levin...

If you want to contact committee members in the house and Senate, here's the info:

Senate Criminal Justice Committee

Bill Sponsor: Tommy Williams

Staffer: Dade Phelan

Tel: (512) 463-0104

Fax: (512) 463-6373 fax

Committee Chair: John Whitmire

Staffer: Blanca Laborde

Tel: (512) 463-0345

Fax: (512) 475-2015

Member: John Carona

Staffer: Wendy Wilson

Tel: (512) 463-0116

Fax: (512) 463-3135

Member: Rodney Ellis

Staffer: Wesley Duncan

Tel: (512) 463-0113

Fax: (512) 463-0006

Member: Juan Hinojosa

Staffer: Rachel Hernandez

Tel: (512) 463-0120

Fax: (512) 463-0229

Member: Steve Ogden

Staffer: Matt Phillips

Tel: (512) 463-0105

Fax: (512) 463-5713

Member: Bill Ratliff

Staffer: Bill Paxton

Tel: (512) 463-0101

Fax: (512) 475-3751

House Regulated Industries

Sponsor:Ron Wilson

(512) 463-0744

(512) 463-5896 Fax

Chair: Phil King

Staffer: Trey Trainor

Tel: Committee: 463-1821, EXT E2.108

Fax: (512) 463-1957 Fax

Vice Chair: Bob Hunter

Tel: (512) 463-0718

Fax: (512) 463-6244 Fax

Presented by: Sylvester Turner

Staffer: Alicia

Tel. (512) 463-0554

Fax: (512) 463-8380

Steve Wolens

Staffer: Mark Burns

Tel. (512) 463-0746

Fax: (512) 463-5826

Todd Baxter

Staffer: Brad Shields

Tel. (512) 463-0631

Fax. (512) 236-1065 Fax

Joe Crabb

Tel. (512) 463-0520

Fax. (512) 463-5896 Fax

Ryan Guillen

Tel. (512) 463-0416

Fax. (512) 463-5896

Thank you for your continued support!

Jon Lebkowsky

President, EFF-Austin

jonl@effaustin.org

http://www.effaustin.org