AITP National Legislative Committee Report to the BOD

UCITA

Defeat of the Uniform Commerce Information Transaction Act remains a committee priority. To that end, we have been working with other organizations which share our view, in particular AFFECT and SIM. We issued a joint press release with SIM, and helped staff a booth at the National Conference of State Legislators that was funded by AFFECT. Steve Flowers and I have been regularly participating in legislative targetting conference calls which have been sponsored and funded by AFFECT to identify key states and coordinate on strategy. We've helped AITP chapters in key states, including Oklahoma, get plugged into their local campaign. Details on the legislation and some of our key activities can be found on the legislative committee web site.

Key points: 

• Amendments approved at the NCCUSL conference this summer are inadequate  
• ABA and the Conference of Attorneys General have not changed their opposition  
• No new states passed the legislation in 2002  
• Rumors persist that if nothing happens in 2003, NCCUSL will drop the bill  
• The Open Source community, most notably Red Hat, has come out against UCITA 
• Note that the legislative committee has previously submitted a budget proposal to the ABOD to help fund AFFECT's efforts to defeat UCITA. We have found AFFECT to be a highly effective vehicle for this effort on an AITP priority issue. 

H1-B Visas 

Initially in May and later in August there was some discussion within the committee on the issue of H1-B visas. These visas grant temporary access to the US job market for foreign workers in fields where there is a documented shortage of resident workers. These are not just technology workers (hair dressers is listed as one example). However, the dot com boom of the 90's coupled with the demands related to Y2K made our industry an obvious area where a pool of H1-B workers was perceived as needed at that time. With the economic downturn, it is no longer clear that this perception remains. In late August we proposed the following resolution for consideration by the ABOD. Please note that while everyone expressing an opinion agreed with the resolution, very few members of the legislative committee felt the issue was of sufficient importance to express an opinion. While I agree with the resolution and would urge the ABOD to pass it, I do not want to convey the impression of clearly demonstrated overwhelming support within the committee. The bulk of H1B technology workers come from India and Europe. Adjusting the visas as described here would have minimal if any impact on our members in Canada and Mexico. 

Whereas H1B quotas are based on worker shortages in the US, and 

Whereas the existence of said shortages in recent years caused the US Congress to significantly increase H1B quotas, and 

Whereas a credible case can be made that there is currently a significantly reduced demand for technology workers in the US, 

Therefore, be it resolved, that AITP supports adjustments to the current H1B quotas as they pertain to technology workers to more accurately reflect true current demand, while ensuring that anti-abuse provisions are strictly enforced.

State of Nebraska tax on I.T. services 

Very recently the state of Nebraska issued a ruling which provided that custom built software was a good rather than a service, and as such was taxable. A query to the committee from the Cornhusker Chapter yielded information that similar rulings had been made and defeated in Wisconsin, Colorado, and California. The Wisconsin ruling was defeated via a court case which should have value to our Nebraska members as a precedent. We provided the information on the court case but also urged them to defeat it with a publicity campaign. Litigation can not be ruled out however. If such a case is filed, an amicus brief will be likely at the appeals level. Politically, it would be better if our Nebraska chapters joined that brief rather than having the national organization join it. Although the legislative committee passed no resolution on the matter, no one spoke in favor of state taxes on I.T. services. Karen Lopez did alert us however that Canadian firms currently collect and pay such a tax. The ABOD may wish to pass a simple resolution saying "AITP supports the current position in most states that I.T. services are not taxable goods, and authorizes the legislative committee to work with local chapters as and when requested to maintain that position". Only Connecticut currently taxes services.

Berman P2P 

Representative Berman (D-Calif) has introduced HR 5211 which permits a copyright holder to attack any computer which is part of a peer to peer network which the copyright owner believes to be infringing on the owner's rights. The definition of a peer to peer network is factually inaccurate in that it defines it in part as" does not permanently route all file or data inquiries or searches through a designated, central computer located in the United States", so by this definition the Yahoo Europe search engine is a peer to peer network since its central computer is located in Great Britain, for instance. There are similar errors throughout the bill. It basically exempts anyone who claims a copyright from liability for attacking the computers of other people, without judicial review or notice to the party being attacked.  Before letters of marque and reprisal were outlawed by the Treaty of Vienna in 1855, the US government could permit private parties to outfit privateers to attack shipping of other countries. The US had to first make a determination that a particular country was a fair target, and any prizes seized had to be brought in front of an admiralty court for a determination that the seizure was appropriate. The difference here is that the privateers get to pick their own targets, there is no requirement for judicial review if the target doesn't figure out that they were attacked under the shelter of this statute, and the targets only get to take action if they can determine who in fact attacked them. The possibilities for vigilantism are obvious.  At the moment there are only 3 cosponsors and no committee hearings set.  However, we should watch it and take action to oppose it if it gathers any momentum.  

CDPTA  

The FCC has posted a call for comment on digital rights copy management. One fear is that they could mandate DRM in such a fashion as to dictate that all software include it in some fashion adhering to some standard which may or may not be viable across platforms. Previous proposals for instance were prejudiced in favor of proprietary software at the expense of open source. The linux community in particular views the current proposals with alarm. We may choose to comment at the appropriate time. This proposal is not quite the same as the previous proposal of Senator Hollings which we have discussed with the ABOD before, but many of the same objections pertain. 

DMCA (RIAA vs Verizon) 

The Digital Millenium Copyright Act has a number of significant problems. Our focus here is very narrow however. One provision is that when a copyright owner believes that their copyrighted works reside on a system under the control of an ISP, they have the right to demand that the infringing material be removed and require the ISP to identify the person(s) who placed them there. The Recording Industry Association of America (RIAA) has sought to expand these provisions be demanding that Verizon provide the identities of subscribers who may be running a peer to peer network, even though there is no allegation that any infringing works were ever placed on Verizon's systems.  Verizon believes that the RIAA demands exceed what is permited by law, and also fears the significant financial implications of the resultant flood of demands. All Internet Service Providers should share in that fear if the RIAA is successful here. Verizon is resisting the demands in court. At the moment, the US courts have not ruled. In the event that an adverse ruling is appealed, we may be asked to join an amicus brief.  

Spam 

The historic AITP position has been to support technological means to fight spam, and the new generation of anti-spam filtering tools such as Spamcop, SPEWS, and others suggest that this is a viable position. We've endorsed limited legislation to support these technical measures. The leading anti-spam advocacy organization around the world is probably CAUCE, and an AITP Legislative Commitee member (Karen Lopez) is a member of the board of both their international body and their Canadian organization. CAUCE in the US has proposed expanding the existing prohibition on junk faxes to cover junk email. That is the kind of limited legislation which matches AITP's position dating back to 1997. Our formal resolution opposed a bill in the 105th Congress that was inconsistent with that position and endorsed a bill which matched it. Unless the ABOD states otherwise, the legislative committee will assume that the position carries forward with regard to similar bills in the current Congress. Note that no anti-spam bill appears to be moving forward very fast at the moment nationally. In agency action, the FTC and SEC have recently taken action against fraudulant spam in well publicized cases. It should be noted that spammers persist in claiming that their spam complies with S1618 passed by the 105th Congress. The problems with that assertion are that 1) S1618 did not pass the 105th Congress, 2) It did not define spam the way that spammers claim it does, and 3) It reaffirmed the absolute right of ISPs to block traffic from spammers and their hosts. State spam laws which exist in about 25 states in general prohibit fraud, deceit, and theft, plus require an opt out provision. Spammers have made the claim that they are unable to operate with that restriction in place and that the state laws therefor are unconstitutional infringements on the Commerce clause. In every case which has made it to the appeals level so far (California and Washington), this assertion has fallen flat and the cases have been remanded for hearings on the merits. The European Parliament has approved even better legislation, requiring prior consent (opt in) before the consumer can be innundated. That legislation passed second reading in the EP on May 30 and must be implemented by member states on that date that you are considering this report in committee. AITP members interested in doing business in Europe can review the requirements via the AITP legislative web site. 

Privacy 

Especially post 9/11, there have been numerous federal legislative and agency proposals that have serious negative impacts on electronic privacy rights. The Center for Democracy and Technology (CDT) as well as the Electronic Privacy Information Center (EPIC) have been tracking these threats. CDT recently completed testimony to the US Congress which I am advised included information which I provided to them from Colorado. I feel quite comfortable following the lead of these organizations in this area. Many of you will remember EPIC as the lead organization on the amicus brief which we joined some years back in the Junger v. Daley encryption export case in Ohio. 

General 

The AITP legislative committee would like to express its appreciation to the Mile High Chapter of AITP for hosting the legislative web site on their server. With the establishment of an AITP chapter which includes Juarez, Mexico, we have further internationalized our legislative site to include legislative and agency links in Mexico. ABOD members interested in participating in or monitoring legislative committee discussions may join the committee discussion list at http://groups.yahoo.com/group/aitp_legislative/ It is the hope of the committee that the AITP ABOD will appoint Stephen Flowers as the 2003 chair of the legislative committee. It has been my pleasure to have served as chair for as long as I have. I enjoyed the ability to contribute, and hope to continue to contribute for awhile longer.