As senators and representatives gear up for the election-year second session of the 114th Congress, they have managed to accomplish a fair amount of work so far. Through the recent holiday recess, Congress added 113 new public laws to the books, including budget appropriations and debt ceiling extensions that passed with far less Sturm und Drang than what has accompanied congressional budget battles of the recent past. In areas of specific interest to the information industry, the year was comparatively quiet, with only a few laws enacted. However, with more than 7,500 bills awaiting action in the upcoming session—and it’s a presidential election-year session at that—it is likely that 2015’s quiet was the calm before 2016’s storm.
The USA FREEDOM Act
A significant, and provocative, enactment from the 2015 Congress was the USA FREEDOM Act, Public Law 114-23, which passed in June. It renewed several of the provisions of 2001’s USA PATRIOT Act, which was created in the aftermath of 9/11. Many of these provisions, such as an expansion of what constitutes “business records” subject to production for a terrorism investigation, proved to be very controversial. Those controversies had become even more heightened as a result of the 2013 disclosure of the National Security Agency’s (NSA) collection of bulk telephone and email records.
Although the USA FREEDOM Act renewed the “business records” provisions of the USA PATRIOT Act, it imposed several new restrictions. The primary one is that the NSA would no longer be collecting any data itself. Instead, the law requires that the data be maintained by telecommunications companies. The NSA would only be allowed to access it through a court order showing a “reasonable suspicion” that a particular person, address, or phone number was relevant to an authorized investigation. The act also reduced some of the secrecy associated with the Foreign Intelligence Surveillance Court (FISC), the body that issues NSA and other foreign surveillance orders. Not surprisingly, the USA FREEDOM Act generated controversy, with initial praise for its balanced protection of both civil liberties and national security giving way to criticisms that it either weakened national security too much—an issue raised in the recent Republican presidential debate—or that it was a “sham,” and the NSA and other security agencies continue to hide behind secrecy to gather bulk data and other records.
The Cybersecurity Information Sharing Act
Equally controversial is the Cybersecurity Information Sharing Act of 2015, which had stalled in the Senate, but was enacted into law in an 11th-hour parliamentary maneuver when it was attached to a comprehensive budget bill in late December 2015. (It can be found in Division N of the Consolidated Appropriations Act, 2016.) Given several high-profile data breaches that took place in 2015, including those affecting the U.S. Office of Personnel Management, several health insurance companies, and the Ashley Madison website, the law would allow companies and the U.S. government to share information with each other in response to breaches and in hopes of preventing future cybersecurity attacks. While the law takes steps to protect privacy, critics are seeing it as a “second Patriot Act.”
The E-Warranty Act
Less controversially, in September, Congress passed the E-Warranty Act of 2015, Public Law 114-51, which will allow companies to provide product warranty information via a company website rather than requiring that the warranty be made available in hard copy with each product. This will make it easy for companies to comply with requirements that they make warranties available to consumers ahead of purchase, but might also make it more difficult for less-computer-savvy consumers to obtain warranty information and pursue warranty claims.
Changes at the Library of Congress
A late enactment was November’s Librarian of Congress Succession Modernization Act of 2015, Public Law 114-86. It states that the Librarian of Congress will be appointed by the president and confirmed by the Senate to a 10-year term. Previously, the position was a lifetime appointment. The outgoing librarian, James H. Billington, retired after 28 years. Advocates for the new law, while not criticizing Billington, argued that the pace of change in the Library of Congress (LC)—including in the U.S. Copyright Office, which (for now) is part of the LC—and in librarianship and IT generally supported the limited term and more frequent appointments.
As a follow-up to the new Librarian of Congress law, a late proposal emerged in Congress to split off the Copyright Office from the LC and make it an independent agency with a director appointed by the president. Legislators and others have argued that the Copyright Office is too essential to a technology- and intellectual-property-based economy to remain under the authority—and limitations, they also argue—of the LC. The proposal, named the Copyright Office for the Digital Economy Act, HR 4241, was drafted in summer 2015, but only introduced in mid-December. Further action on the bill is expected in 2016.
While there have been no bills yet introduced, the broader topic of comprehensive copyright reform is being actively discussed by legislators and industry stakeholders. The House Committee on the Judiciary is spearheading copyright reform efforts and has been conducting hearings and “town hall” meetings to listen to stakeholders’ concerns. Town hall sessions were held in Nashville, Tenn. (to hear from the music industry), and in both northern and southern California (to hear from the technology community). Copyright reform is a complex and therefore slow process: The current Copyright Act of 1976 took 12 years of legislative proposals before being signed into law. Final action is unlikely in 2016, but the continued efforts show that progress is being made.
Patent reform was also a significant part of Congress’ workload in 2015, with a number of proposals entering the legislative process. The legislation getting the most attention is the Innovation Act, HR 9, and its companion in the Senate, the PATENT Act, S 1137. Both proposals attempt to attack the problem of “patent trolls”: investors or companies that buy up patents, then attempt to gain revenue by threatening infringement lawsuits that are frequently either unwarranted or unsubstantiated. New rules would be created that would make it more difficult and more costly to file lawsuits that proved to be unwarranted. The proposals have been in development for several years, and action is very probable in 2016.
Congress was not the only source of legal developments in 2015. Federal appellate courts gave fair use advocates victories in the Google Books case—finding that scanning books and providing “snippets” from the books were fair use—and in the “dancing baby” case, which held that copyright owners were required to consider fair use before sending takedown notices under the Digital Millennium Copyright Act. A recent appellate court decision struck down a law preventing the registration of trademarks that “disparage” other persons or groups, as violating the free speech rights of trademark owners. The case could have a significant impact on the legal battle over the Washington Redskins football team’s trademarks. And in a split decision, a court held that Warner Music could not enforce its copyright claims to the song “Happy Birthday to You” because there was no evidence that the copyright was properly transferred. However, the court stopped short of declaring the song in the public domain.
Congress and the courts are constantly in session, considering, adopting, and interpreting a wide range of laws in a wide range of areas. While it is proper and fitting to take a year-end look at past developments and future possibilities, the need for constant monitoring of legal rights and obligations never ends.