NCC Advocacy Update, October 1998
Nixon Tapes Cut Before Return to Family
Following years of legal battles, a federal appeals court ruled this spring that the National Archives must provide the Nixon estate "forthwith" all private and personal conversations identified to date. On August 10 the National Archives' technical staff began to respond to this order. About 17,000 edits, accounting for about 820 hours of the total 3,700 hours of the original tapes, will be returned to the Nixon family. In addition to giving the family the deleted material, the National Archives will also give them a complete preservation copy of all the tapes, including the private portions. However, the National Archives will not be allowed to keep a master copy of the original 3,700 hours; it can retain only a precisely edited copy with the private and personal portions deleted. The National Archives has estimated that it will take the team of tape editors about four and a half years to complete the job—razor blades have to be used to cut out the personal and private material from the original tapes—at a cost of about $600,000.
What is disturbing to some historians are indications that most of the "private and personal" conversations are not purely personal but are "political" conversations, which include discussions in which Nixon was acting as head of the Republican Party and not as president. As reported in the Washington Post, the "political" portions included conversations in 1974 about how to remove Robert Dole as chairman of the Republican National Committee. Archives officials have indicated that they are hopeful that the Nixon family will preserve the "political" conversations and make them public at some time. However, a spokesperson for the Nixon estate has indicated that because the National Archives has not made any distinctions between the purely personal and the "political" conversations that it would be very difficult to separate these out at a later date.
House Passes Digital Copyright Bill
On August 4 the House passed by voice vote H.R. 2281, the World Intellectual Property Organization Treaties Implementation Act. The version of H.R. 2281 that came to the floor for a vote was not only a merger of portions of the two bills passed by the House Judiciary and Commerce committees but also included several new sections. One new section was Title V, "Collections of Information Antipiracy Act," which is in large part the so-called database bill, H.R. 2652, which passed the house in May and which was opposed by the library and scholarly communities. Although some changes had been made to the database bill, many in the library and scholarly communities still view it as a flawed bill that would stifle research.
The expanded H.R. 2281 also included a section to establish an Undersecretary of Commerce for Intellectual Property. The bill retains the Commerce Committee's provisions to undertake a study on distance education and to permit digital preservation for libraries and archives. The bill passed on August 4 also includes the House Commerce Committee's compromise provision calling for the postponement for two years of the implementation of the section prohibiting an individual's circumvention of technological protection measures, such as encryption, used to prevent access to protected copyrighted material. Additionally, the bill calls on the Secretary of Commerce to conduct a review every three years to determine if libraries, archives, or educational institutions are being adversely affected by the implementation of the law.
The House Report that accompanies the Commerce Committee's version of H .R. 2281 included a section with "Additional Views" by Representatives Scott Klug (R-Wis.) and Rick Boucher (D-Va.). Klug and Boucher indicate that while improvements had been made to the bill, they remained troubled by the implications for the bill, and they note that the bill would give copyright owners total authority to "lock up" their works and prevent "fair use" access. While some in the library and scholarly communities are willing, somewhat reluctantly, as are Klug and Boucher, to support the revised and improved H.R. 2281, the bill passed by the House on August 4 included the database bill that many view as seriously flawed.
A National Historic Site for Kate Mullany
On July 14 Representative Michael McNulty (D-N.Y.) introduced H.R. 4206, a bill to establish the Kate Mullany National Historic Site in Troy, N.Y. Mullany was a leader in the emergence of the movement of women laborers in the 1860s. She organized the Collar Laundry Union in Troy and went on to hold national office in the National Labor Union, making her the first woman ever appointed to a national labor office. McNulty has noted that "as suffragists Susan B. Anthony, Elizabeth Cady Stanton, and Lucretia Mott were leading a national movement to secure voting rights for women, Kate Mullany was leading the movement to secure equality for women in the workplace." The bill provides for the acquisition of Mullany's house as well as the administration and interpretation of the site. There are currently 82 cosponsors for H.R. 4206.
Nazi Era Records to Be Declassified
On August 6 the House passed by unanimous consentS. 1379, a bill to require disclosure under the Freedom of Information Act (FOIA) of documents related to Nazi war crimes and criminals. The bill calls for the establishment of an interagency working group to administer and facilitate the disclosure of these records. Representatives Carolyn Maloney (D-N.Y.) and Steve Horn (R-Calif.), the key advocates of this bill in the House, stressed that for decades the U.S. government has continued to keep secret much of the information it has on Nazi war criminals. They argued that it is imperative that this information now be made available to the public. Horn noted that federal agencies have routinely denied FOIA requests citing exemptions for national defense, foreign relations, and intelligence. While there are records that should still be withheld for privacy or national security interests, Maloney argued that it is time to put aside sweeping exemptions that have shielded Nazi activities and to bring to light information that may be in the files and archives of the United States. In June the Senate passed this bill, which was sponsored by Senator Mike DeWine (ROhio). The bill is now being prepared to send to the president for his signature.
Representative Maloney reported that the Senate Appropriations Committee had included language to increase the budget of the Office of Special Investigations at the Department of Justice by $2 million to help implement this legislation, and she urged the House to do likewise.
Department of Energy Laboratory Records Subject to FOIA
On July 22 a federal judge ruled that the Department of Energy could no longer deny access to Los Alamos National Laboratory documents by claiming that they are "contract records" and not "agency records." In Albuquerque, Judge Don J. Svet stated that the laboratory documents are owned and controlled by the U.S. government, not by the laboratory contractors, and are thus subject to the FOIA. Since contractors perform the large majority of the work of the Department of Energy, this ruling could have major implications for public access to records related to nuclear weapons and testing.
Gary Stern Appointed General Counsel of National Archives
On August 18 U.S. Archivist John Carlin announced the appointment of Gary M. Stern as the General Counsel of the National Archives and Records Administration. He began his new duties on September 14. A graduate of Yale University Law School, Stern has had a wide range of legal and administrative experience working on information issues from both inside and outside the government. He has provided legal services to the Department of Energy, the U.S. Federal Advisory Committee on Human Radiation Experiments, the National Academy of Sciences, and the American Civil Liberties Union. Carlin noted that he "has dealt with the Freedom of Information Act, the Privacy Act, the Federal and President Records Act, and declassification issues from the standpoint of both public users of records and government agencies." Historians in the Washington area are familiar with Stern's work and welcomed this news.
Future of Copyright in the Digital Age
On July 20 the Copyright Office released a report titled Project Looking Forward-Sketching the Future of Copyright in a Networked World. The report describes three "patterns" that arise as copyright law confronts changing technology: new subject matter, new uses, and decentralized infringement. The report finds that decentralized infringement—where copies can be made cheaply and distributed widely by individuals, as is possible on the Internet—presents the most significant challenge today for copyright law's accommodation of new technologies. In spite of these challenges the report concludes that copyright law has a long history of adapting to technological advances, and that the possibilities of digital exploitation will not render copyright law obsolete. The report is available on the web site of the U.S. Copyright Office at http://www.loc.gov/copyright/, under the heading "What's New." After mid-August, copies of the report also will be available for purchase for $23 through the Government Printing Office at (202) 512-1800. Refer to the stock number 030-002-00191-8.
Page Putnam Miller is director of National Coordinating Committee for Promotion of History.
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