REPORT OF THE LEGISLATIVE AFFAIRS COMMITTEE FOR 2003

By: Steve Flowers

Chair

UCITA DEFEATED

The committee achieved its primary goal in 2003, thanks to the combined efforts of AITP, AFFECT, and SIM.

Efforts to promote the establishment of UCITA were defeated on several fronts. Proponents of UCITA, the Uniform Computer Information Transactions Act, were unable to gain the support of the American Bar Association or Attorneys General, and this was enough to deflate the aims of NCCUSL to continue to push the adoption of this anti-consumer legislation in various states.

Lobbying efforts in Oklahoma were led by Mark Kleine and continued strong leadership by Charlie Oriez on several fronts were effective in supporting AFFECT lobbyists, who were able to persuade opinion leaders that the serious faults inherent in UCITA overshadowed any perceived benefits. Randy Roth represented SIM.

In August, 2003, NCCUSL, the National Conference of Commissioners on Uniform State Laws, decided to discharge its UCITA Standby Drafting Committee and not to expend further resources on promoting the UCITA in the legislatures.

Last year, the AITP Board of Directors approved funding to support membership in AFFECT, and the committee requests that the ABOD authorize a similar or larger amount for membership dues for 2004. AFFECT’s lobbying activities will continue, and our participation will be imperative if we are to build on this year’s success.

AFFECT recently met to consider its next steps. We will focus on developing a set of software and online contracting principles. We have known for some time that this is the direction we needed to pursue. That work was interrupted by our attention to the ABA and the legislative issues.

George Koscho appointed Dick Davies of the Baltimore Chapter to attend AFFECT’s annual meeting and he represented AITP there. Mr. Davies reports that Cem Kaner from Florida Institute of Technology has a Software Users Bill of Rights that can supplant UCITA. AFFECT is looking at providing a clear alternative and making their solution common practice ASAP. Major customers ask for and get exactly the concessions Kaner is recommending. It would cut weeks off the sales cycle to just give it to them. He

suggested AFFECT ally themselves with federal users. We are examining how to do that currently.

We will develop principles for licensing commercial software. The group will use Cem Kaner's Software Bill of Rights as a basis. There has been an extensive exchange of list serv messages on the Free/Open Source issue. At some point, we will decide how it might fit into our principles. Jean Braucher is working on her MEULA (Model End User License Agreement) and we will ultimately coordinate our work with hers. Once the committee completes its initial drafting process we will circulate it to get others' input.

We will reactivate the AFFECT Legislative Committee later this fall in preparation for the 2004 sessions to deal with any UCITA introductions, "bomb shelter" initiatives, and UCC Articles 1 and 2 introductions.

AITP HELPS DEFEAT VERISIGN INITIATIVE

Within the past six weeks, Verisign, until recently the owner of Network Solutions, Inc. caused an uproar by making a decision to change how it handled invalid Web page inquiries. Charlie Oriez immediately and strongly opposed this decision, which three into question the company’s ability to manage the architecture of the Internet.

Joining a number of other concerned parties in response to Verisign’s unprecedented action to hijack misdirected URL and e-mail messages, Charlie gave an interview on the issue, covering much the same ground as handled in a recent Information Executive article. Webcast of the interview is available at http://w3w3.com, which has a regular audience of 10,000 persons.

On October 3, ICANN demanded that Verisign back out the wild carding of the top-level domains, .com, and .net. Verisign stated that it would comply with the demand. Since the legislative committee issued a press release awhile back calling on ICANN to do exactly that, we have received local press inquiries about our reaction. We're pleased. We feel that the ICANN action is appropriate, and entirely in keeping with ICANN's charge to ensure the stability of the net. The AITP legislative web page has various links related to this issue. 

FTC DO-NOT-CALL REGISTRY AND PRIVACY ISSUES

This month, Charlie Oriez approached the Colorado Attorney General with a proposal that he intervene on behalf of the class of 51 million subscribers to the FTC's do not call list. He is the logical lead, since the suit is in Federal Court in Colorado.

Our position was in defense of the class of 51 million Americans who placed their phone numbers on the FTC's list. In our opinion, the challenges to the do-not-call registry violate our rights. Here are the arguments:

1) First Amendment violations - 51 million Americans told the FTC that we did not want telemarketing calls. Nothing in the First Amendment says that we may only petition the government so long as the petitions are ineffective. By barring the FTC from passing on our "petition" to the FCC, our first amendment rights are violated.

2) Fourth Amendment violations - "across the threshold of our homes even the King of England can not pass without permission." This was one of the critical reasons we even had a revolution. Yet Judge Nottingham seeks to provide to telemarketers a right refused to kings.

3) Remedies ignored - Judge Nottingham feels that the sole reason that the regulation is unconstitutional is due to its limitation to commercial speech. However, the regulation has a severance clause. Let him declare the limited provision exempting some speech to be unconstitutional. The regulation can go forward, thanks to the severance clause, without that restriction.

4) Recusal - Judge Nottingham's phone number is on the list. If the class is certified, and he is a member of the class, would he not have to recuse himself?

In regard to another privacy issue, Norbert Kubilus indicated that California law SB 1386 went into effect on 7/1/03.   It applies to any person or entity that does business in California and owns, licenses or maintains customer data in computer files or database.  If there is a security breach, that person or entity must notify every California customer whose personal information may have been compromised, and disclose the security breach.  SB 1386 applies only to unencrypted "Personal Information" of California residents.  It is a response to hacking, identify theft and related privacy issues.  For more information, see http://eupdate.luce.com/business/0107.pdf.

SPAM

A number of article regarding spam have appeared in recent issues of Information Executive as a service to our members, authored by Charlie Oriez. Legislative proposals to outlaw and restrict spammers in the Congress are numerous, but our best guess is that none of the legislation will get out of Congress this year.

Our position consistently has been that spam can be countered better by use of technical measures, rather than through legislation.

However, we are concerned that there has been a growing problem in recent weeks with spammers engaged in DDOS attacks on the operators of DNSBL's (lists of spam sources used for blocking). The FBI has been unable or unwilling to track down those who engage in the attacks and arrest them. One of the most popular ones, osirusoft, was knocked out of business by it. We think we should pressure the FBI to act aggressively.

AITP's basic principles on spam:

Spam is defined as unsolicited bulk email. Content does not matter. Unsolicited mail from a presidential candidate, charity, or fortune 500 business is just as much spam as email from porn sites, pharmaceutical peddlers, or embezzlers, if the person receiving the mail never asked for it or agreed to be on the list receiving it.

Spam costs business a significant amount of money and time, and endangers the use of the Internet for useful communications. As such, it is in our interest to see it controlled and, if possible, eliminated.

We endorse confirmed opt-in as the best method of ensuring that the recipient requested the mail.

We oppose any legislation, which requires an individual or business to opt out of any mailing list, which they never opted into.

We oppose attempts by spammers and others to redefine confirmed opt-in as anything other than best practices as defined by the MAPS (Mail Abuse Prevention System) organization http://mail-abuse.org/manage.html

In recognition of the cross border nature of the Internet, we prefer technology to legislation as the most effective method for controlling spam.

We reaffirm the right of any person or any ISP to protect their property from the costs of unwanted mail by using whatever methods in their sole discretion are the best technical measures to block spam. Spammers have no inherent right under the first amendment or otherwise to force their communications on an unwilling public.

To the extent that we support legislation, we support legislation which recognizes the rights described above, that permits enforcement by injured parties rather than requiring us to wait for government action, and that protects our email addresses from predatory marketers (e.g. - when a 'do not spam' list is proposed, it must permit domain level listing and hashing as a security measure).

We support the right of the FTC, Attorneys General, and other competent authorities, to outlaw and clamp down on fraudulent practices in spam. We believe that, if anything, the FTC's estimate that 66% of all spam is obviously fraudulent is an underestimate.

Norbert Kubilus reports that California now has the nation's toughest anti-spam law. Effective January 1, 2004, California will prohibit Internet advertisers from sending unsolicited spam e-mails under legislation (SB 186) that Gov. Gray Davis signed on September 23rd.  The law provides for fines up to $1 million per incident.  Full story available at http://www.signonsandiego.com/news/state/20030923-2141-ca-spamattack.html.

Product Liability Lawsuits Are New Threat to Microsoft

"Reliance on Microsoft Called Risk to US Security" was the headline of a recent article in Reuters. This represents one of the opening salvos in a growing sense that defective software, and reliance on commonly used software could expose software consumers to additional risks from hackers and terrorists, and results in higher costs for them. We expect this issue to be on our radar screen in the near future.

information technology employment issues

OFFSHORE OUTSOURCING OF I.T. JOBS AMD h-1b visas

These issues have been the subjects of extended and sometimes heated discussion during the year. The committee asked the Association Board of Directors to take a position on many of these issues, but the ABOD, due to lack of consensus and recognition of competing interests among I.T. employers and employees, has so far declined to do so.

Glenn Berman and Ken Adams contend that outsourcing and visas for foreign workers cause layoffs and job disruptions for U.S. and Canadian I.T. professionals. Employers contend they must hire "foreign" workers in order to remain competitive. Larry Schmitz has called for AITP to take a strong stand on the issue, arguing that the US is undermining its own economy by "immigrating" cheap labor, as well as making it easier to outsource offshore.

Larry Schmitz and Karen Lopez have led discussions on these issues throughout the year.

The limit on H-1B visas was set to drop on Oct. 1, from 195,000 to 65,000. The only thing that could prevent this is Congress, which needed to act by the end of September. On Sept. 16, the Senate Judiciary Committee held a hearing to look at the H-1B visa and its effects on the U.S. economy and on U.S. workers.

The H-1B visa is a temporary visa used to bring foreign workers with specialized skills into the United States. It has increasingly come under fire lately as the U.S. economy has weakened and unemployment has risen, particularly among high-tech workers and other jobs for which H-1B visa workers are commonly hired. At the Senate Judiciary Committee hearing, several people testified in favor of maintaining a higher cap

on these visas than the 65,000-limit.

Our 2002 H-1B resolution would seem to suggest that we would oppose any attempt to extend the limits if any effort to that effect materialized. We suggested economic downturns should cause a reevaluation of the number of visas needed just as quickly as a shortage does.

licensing & certification of software engineers &

other i.t. professionals

Larry Schmitz, Ken Adams, Mark Gilfand, and others have weighed in on this topic for years. The basic issue boils down a few key points:

Some people look at IT workers as 'software engineers'.

There is a movement towards licensing 'software engineers'.

Texas is one state attempting to do this, with the impetus of the IEEE.

There are many ramifications if in fact licensing does become a requirement.

Many within AITP and ACM oppose the licensing approach they endorse.

The ABOD is expected to debate and vote on this subject during the National Conference in St. Louis, MO.

The legislative affairs committee is watching to see if the licensing issue comes up in state legislatures. IEEE is looking for other states to join in the Texas initiative.

To review the ACM Position on Software Engineering as a Licensed

Engineering Profession, see:

http://www.acm.org/serving/se_policy/selep_main.html

To review the new Texas law, see:

http://www.capitol.state.tx.us/cgi-bin/tlo/textframe.cmd?LEG=78&SESS=R&CHAMB

ER=S&BILLTYPE=B&BILLSUFFIX=00277&VERSION=3&TYPE=B

The legislative committee voted for AITP endorsement of HR49 by representative Cox making permanent the current ban on Internet access charges. On the software Engineer issue, Charlie Oriez’ summary follows: "Recently, the Governor of Texas signed into law State Senate Bill 277, a bill introduced by Texas Senator Rodney Ellis. The new law exempts degreed engineers and those employed as "engineers" with private companies from professional state licensing requirements. The law empowers the Texas State Board of Engineers with the ability to bar independent contractors within the state, who are not exempt under this law, from using the term engineer" in any description of their professional services or qualifications. The new law is in response to a Texas Statute that would have ended the existence of the State Board of Engineers.

Respectfully submitted,

Steve Flowers

Chair