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Congress is engineering some poor legislation

When Ford Motor Co. puts out a new car, Chrysler buys one and takes it apart to get a close look at Ford's latest innovations. This is part of a process called reverse engineering, and it's one of the reasons consumers end up with better products.

Now imagine a law that prohibited anyone except Ford employees from dismantling the Ford car. Ridiculous? Something similar is moving all too swiftly through Congress _ but the industry in this case is software.

The legislation is just one of several potentially damaging laws affecting technology and civil liberties under consideration by our elected representatives, who apparently have taken to heart the criticism they've been receiving for taking too many vacations. Like Will Rogers, I'm beginning to wonder whether they should make their holidays permanent.

One of the worst of the pending bills is HR 2281, which the House Judiciary Committee has passed and sent to the floor of the lower chamber. Over the objections of lawmakers who understand its implications _ such as Rep. Zoe Lofgren, D-Calif., and Rich Boucher, D-Va. _ the bill would make it illegal to reverse-engineer software for any purpose.

The legislation's ostensible purpose is to comply with a draft treaty on intellectual property in the digital age, proposed about 16 months ago by the World Intellectual Property Rights Organization, a United Nations agency. But the bill, a gift to large companies in the intellectual-property business, goes beyond the draft language.

Almost no one endorses reverse engineering when the goal is to pirate software. But this law makes no clear distinction between misuse of this valuable tool and appropriate use, such as to come up with innovative new products.

For example, a company called Accolade reverse-engineered the Sega video-game box, against Sega's wishes, so it could write its own games to run on Sega. Sega unsuccessfully sued Accolade; consumers got the benefits of more competition.

Industry trade groups, claiming no one should be worried that big companies will stomp little ones, need a reality check. This legislation is made to order for the giants that would like nothing better than to squash competition under the guise of protecting intellectual property.

If that isn't damaging enough, consider another pernicious effect of the legislation. As the Association for Computing Machinery notes, it would effectively gut the Fair Use doctrine in today's copyright law. Fair Use allows researchers, scholars and others to reproduce small amounts of otherwise protected material.

The ACM also thinks the law would inhibit encryption research. Encryption, by definition, is the scrambling of data so it can't be understood by others. Make it illegal to unscramble code, which this bill could do, and you might foil testing of encryption methods to see if they work.

A better bill is HR 3048, sponsored by Boucher and Rep. Tom Campbell, R-Calif., among others. It balances the rights of copyright holders and consumers of information far more fairly. Given the power of big business to control legislation these days, however, the bill's very balance seems to be a liability.

Not content with undermining innovation and research, Congress is also considering a variety of new online censorship measures.

Last month, the Senate Commerce Committee approved a bill that has accurately been dubbed "Son of CDA," a reference to the so-called Communications Decency Act of 1996. The Supreme Court, you'll recall, flatly rejected the CDA's blunderbuss attempt to ban material deemed harmful to minors as an unconstitutional attack on free speech.

That hasn't stopped the right wing from trying again. Sen. Dan Coats, R-Ind., is the primary sponsor of legislation that purportedly deals with some of the court's objections. In fact, it's probably just as unconstitutional as its predecessor. Unlike the original CDA, it claims to limit its controls to so-called commercial World Wide Web sites. Like the CDA, it is absurdly vague and would ultimately block adults from viewing legitimate material.

I'm sure Coats and his allies know this, just as I'm sure many of them genuinely _ and wrongly, in my view _ believe the Internet must be censored to save children. The current betting holds Coats' bill, or one like it, will pass.

State legislators can't resist censorship, either. Across the country they're enacting or proposing mini-CDAs and other laws to restrict access or otherwise control the Net. History shows state legislatures have even less respect for the Constitution.

Local governments have joined the anti-liberty parade, too. In Silicon Valley, the city of Mountain View has decided to put filters on its public library computers. This misguided policy will make the city's wonderful new library considerably less useful to its residents.

You can disagree with politicians who pass laws that shred fundamental liberties when they truly believe they're right. You should have nothing but contempt for the ones who vote this way solely to inoculate themselves against right-wing attack advertisements during campaigns, counting on the courts to rule the laws unconstitutional. Sometimes it's unclear who's who. But if you care about your right to read what you want, when you want, you should oppose them whatever the motive.

In an age when political campaigns are controlled by attack ads and politicians are controlled by big-money contributors who expect something for their contributions, maybe it's asking too much to expect intellectual integrity. Maybe citizens are too burned out by their jobs and family lives to pay better attention.

But our basic freedoms are at stake here. If we won't take them seriously, perhaps we shouldn't expect any better from the people we elect to represent us.

_ Write Dan Gillmor at the San Jose Mercury News, 750 Ridder Park Drive, San Jose, CA 95190; e-mail: dgillmorsjmercury.com; phone (408) 920-5016; fax (408) 920-5917.

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