Update 4/20/05 Legislative Review
We’re a couple of months into the 109th Congress, with some problematic bills but also a few we can cheer. Here’s a quick look. All of these, by the way, are listed in the Pending Legislation section of the CJOG website and their status is updated as we learn of any movement. At this point, CJOG has taken an active position only on the OPEN Government Act. A number of media groups have supported the Reporter’s Privilege bill. We’re looking at several others.
Freedom of Information Act
OPEN Government Act. (S 394, HR 867) Sens John Cornyn and Patrick Leahy’s bill to “repair” FOIA is aimed at functional, administrative improvements, not substantive reform. A companion has been introduced in the House. CJOG and many of its member organizations have endorsed it. The Senate Judiciary Committee had a hearing on the bill March 15; the House Government Operations Committee will hold a hearing on FOIA generally May 11. Some opposition is developing within the bureaucracy from those who feel the administrative burdens will be too great. It could be a tough fight, and at least a year away from a vote. It’s the top priority of the new Sunshine in Government Initiative.
Faster FOIA. (S 589, HR 1620) Another Cornyn-Leahy bill, also with a House companion by Lamar Smith and Brad Sherman. The bill, which creates a 16-member commission to study FOIA for a year and report back to Congress, was filed after early signs of opposition to the Open Government Act. The bill got off to a quick start in the Senate and was voted out of the Judiciary Committee in mid-March less than a week after introduction. The upside: Any study of FOIA can only spotlight real operational problems that need fixing. The downside: it might slow the Open Government Act.
Access to Information
FOIA Exemption for Autopsy Photos (HR 1513) Just filed, this creates a statutory exemption from FOIA for photographs or copies of photographs taken during an autopsy by or for a medical examiner. Simply, it’s a bad bill.
Nazi War Crimes Disclosure Act (S 384) It’s now law, extending the life of the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group for two years so it can complete its review and analysis of classified documents for the purpose of making them public.
Remote Sensing Applications (HR 426) This bill stands in stark contrast to efforts in the last Congress, which we opposed, to limit the use of remote sensing data based on national security arguments. This bill would make geospatial data more widely available.
Farm Animal Identification, Animal Health Protection (HR 1254 and 1256) Companion bills that make livestock identification numbers – and thus the means to track infections like hoof and mouth disease – proprietary information. The bill has strong agriculture industry backing.
Fairness in Asbestos Injury Resolution (HR 1360). The intent is to bring costly asbestos litigation to a close by creating a privately funded, publicly administered fund to pay present and future claims. But Section 101 provides confidentiality to “any person” who seeks to have his or her records withheld under FOIA. While some privacy provision may be reasonable, this language is overly broad and needs to be amended.
Homeland Security
Anti-Terrorism and Port Security Act. (HR 173) A comprehensive seaport security bill that grants unrestricted authority to the Coast Guard’s “captain of the port” to “secure and protect … sensitive information.” That includes maps and “any other information related to the security of the seaport that the Captain-of-the-Port determines is appropriate,” even if already public. The “sensitive information” can be confiscated and sealed; any state law to the contrary is set aside.
Smarter Funding for All of America's Homeland Security (HR 91) Requires the Department of Homeland Security to report annually to Congress on information sharing the sharing of information with state and local officials, including how many are granted classified clearance and who is involved in the clearance process. Perhaps a first step toward DHS accountability.
Patriot Act
Security and Freedom Enhancement Act (S 737) Amends the Patriot Act to modify many of the civil liberties concerns that have been raised. Limits the use of roving wiretaps and “sneak and peak” search warrants, and narrows the ability of the FBI to obtain library and bookseller records.
Reasonable Notice and Search Act (S 316) Modifies the USA-PATRIOT Act to limit the impact of Section 213 – the so called “sneak and peak provision” that allows the federal agents to execute a search warrant but delay notice to the owner or occupant.
Library, Bookseller, and Personal Records Privacy Act (S 317) Amends the PATRIOT Act to limits the Federal Government's access to library, bookseller, medical, and other sensitive, personal information which it can now obtain under the Foreign Intelligence Surveillance Act.
Computer Trespass Clarification Act (S 318) Amends the USA-PATRIOT Act to limit the definition of a computer trespasser to someone who is not authorized by the owner.
Electronic Communications Privacy Judicial Review and Improvement Act (S 693) A section of the Patriot Act dealing with use of “National Security Letters” to require telephone and internet providers to turn over subscriber records was struck down last fall. This repairs the legal impediment by specifically providing for court review of the authorizing letter, but provides the judge cannot challenge the government’s “national security” assertion on any grounds other than “bad faith.”
Reporters Privilege/Shield Law
Free Flow of Information Act (S 340, HR 581) ( Sen. Lugar, Rep. Pence) Provides an absolute privilege for protecting the identity of a confidential source and a qualified privilege on information gathered. The latter can be compelled if no other sources can be found and, in a criminal case it is essential to either the prosecution or defense. Also protects journalists from searches of records held by third parties, such as phone or e-mail records. The “covered person” is the publisher or broadcaster of the information; it does not include persons independently publishing on the web. The bill is being actively supported NAA.
Free Speech Protection Act (S 369) (Sen. Dodd) Modeled after the D.C. Shield Law, considered one of the strongest state laws, it creates an absolute shield against compelling a reporter to reveal a source. The act would cover the individual reporter, broadly defined. Dodd has also signed as a co-sponsor on S 340.
Media Bashing
Sunshine in Journalism Act (HR 649) Rep. Rick Keller”s bill would make it a federal crime – a misdemeanor punishable by a fine of up to $5,000 and 30 days in jail – if a journalist accepts compensation from the federal government for “promoting, opposing or commenting on” legislation or policies and regulations and does not disclose it within 30 days. The bill suggests no punishment for the agency officials who offer the tainted compensation.
Privacy
Social Security Number Misuse Prevention Act (S 29) and Privacy Act of 2005 (S 116) The first deals with electronic records; the second all records. They are designed to block identity theft by removing Social Security Numbers from the public domain. They prohibit anyone from selling or displaying an individual’s Social Security Number to the general public without the person’s consent, directs the attorney general to determine whether electronic records containing SSNs should continue to be released or posted on the Internet, and also calls for a report by the Comptroller General on the use of social security numbers in public records.
Information Protection and Security Act (HR 1080, S 500) This is aimed at the information data brokers sell, with provisions strengthening on data accuracy, confidentiality, user authentication and tracking, and the prevention of illegal or unauthorized activity. It lets people check personal information, get errors corrected and know who is getting the data. It closes no additional public records and might serve to mitigate some of the fears driving privacy legislation.
Other
Corps of Engineers Modernization and Improvement Act (S 753) This is worth watching for two very positive reasons. It very specifically calls for transparency by the Corps on all projects involving water resources. “Supporting data, analytical documents and information …considered in the analysis” are to be readily available and also posted on the internet. And it provides perhaps the most precise, and narrow, definition of a trade secret we’ve seen.
Pete Weitzel
