Washington Roundup

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The House Judiciary Committee on Tuesday took a halting step toward preventing law enforcement from reading e-mail messages with a mere administrative subpoena to an ISP as they often do, by approving the Electronic Communications Privacy Act, which would require agents to obtain a real search warrant signed by an actual judge before reading messages stored on a server.

"Merely by virtue of the fact that open e-mails are kept on the Internet or on a network server, instead of on the user's personal computer, they get less protection," sponsor US Representative Zoe Lofgren (Democrat, California) observed. "This distinction is indefensible, and totally contradicts people's reasonable expectations of privacy in their open e-mails." Lofgren's amendment would also require the Feds to notify the subject of a warrant that it has been issued. US Representative Anthony Weiner (Democrat, New York) was the only Committee Member who opposed the measure. This is an important piece of legislation, but one for the January, 2001 session when Members return to work, exhausted and bankrupt from their election campaigns.

The US Ninth Circuit Court of Appeals is scheduled to hear oral arguments from Napster and the Recording Industry Association of America (RIAA) on Monday, to determine if US District Court Judge Marilyn Patel applied the 1984 Betamax decision, the 1992 Audio Home Recording Act, and the Digital Millennium Copyright Act (DMCA) properly when she issued a temporary injunction to shut Napster down, which the appellate court subsequently blocked. Most importantly, the court will consider whether using home computer technology to duplicate musical works should fall within the fair-use provisions of US copyright law, a hotly contested issue. The Patel ruling was little more than an industry wish-list signed into law, the appellate judges seem to suspect; but unless she made errors interpreting the legislation, they will have to let it stand. But it makes little difference how the appellate court rules; in either case, someone is going to be disappointed and insist on appealing further. Monday's proceedings and subsequent decision will be little more than a mile-marker along the tortuous route to the US Supreme Court.

House Republicans are quietly massaging a bill to stop on-line gambling by preventing Americans from using credit cards at Web casinos, after the House failed to approve the

Internet Gambling Prohibition Act

back in July. The bill's sponsor, US Representative Robert Goodlatte (Republican, Virginia), and his klatch of supporters (ie., lobbyists from brick-and mortar-casinos), are rewriting it in hopes of attracting enough votes to pass it. The proposal would outlaw the use of money orders, cheques and credit cards in Internet gambling transactions.

Goodlatte's original mistake was to suck up to several special-interest groups. House conservatives withdrew support after horse racing, dog tracks, and jai alai lobbyists inserted language that would have favoured their on-line operations. Another preposterous provision was a requirement that ISPs block access to overseas Web sites when requested by police. The proposed government-goon-squad censorship didn't go over quite as well as Goodlatte had hoped. His current alternative would force financial institutions to restrict credit card transactions going to offshore casinos. (We can't wait to hear what the banking lobby will have to say about that.) The bill could go to the House floor for a vote this week, but we rather expect Goodlatte to try to stick it onto an appropriations bill, the customary tactic for passing really idiotic legislative measures.

MP3.com has launched a grassroots write-your-Congressman campaign called the "Million E-mail March" in support of a bill that would allow people to stream MP3 files stored on-line and listen to them anywhere they please, so long as they've previously purchased the material in another format. The company is urging passage of a bill introduced earlier this week by US Representative Rick Boucher (Democrat, Virginia). If the timing is right (a big 'if'), the bill could invalidate a recent court ruling awarding Universal Music a whopping judgment which could reach as much as $250 million.

"If [the measure] passes before a final judgment is entered, I would assume the statute would take full effect," Boucher said. "Copyright owners lose nothing by virtue of the technology MP3.com is using," he noted. But losses are in the greedy eye of the beholder, and Boucher is making powerful enemies among very well-heeled industry front groups. It remains to be seen if MP3.com's grassroots effort can tip the scales against generous industry lobbyists. However, we will have to be patient; Boucher's bill can't possibly make it onto the legislative schedule until January. ®

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