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A New Tune May Bolster the GOP; The controversy about trading music files over the Internet raises an opportunity for Republicans to show their commitment to privacy and limited government, while scoring points with Democrat constituencies
Insight on the News, Sept 2, 2003 by John Berlau
Byline: John Berlau, INSIGHT
The Senate Governmental Affairs Permanent Subcommittee on Investigations is seen not only as a stage for presenting and examining the great issues of the day but for advancing the careers of the nation's most ambitious political performers. From Harry Truman's hearings on waste and fraud in the defense industry to investigations of organized crime, union racketeering, communists in government and money laundering, this subcommittee and its select avatars has been known as the place to get action and lots of media attention. Service on this panel also has helped propel senators into higher office. Its Website (http://govt-aff.senate.gov/psi.htm) notes that alumni have moved on to prestigious posts such as U.S. attorney general, secretary of state and vice president. Three former members Truman, Richard Nixon and John Kennedy went on to the highest office in the land.
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It therefore was with considerable interest to Washington insiders when the subcommittee's new chairman, Republican Sen. Norm Coleman elected in a tight Minnesota race against former vice president Walter Mondale after the death of incumbent Democrat Paul Wellstone announced that one of his first probes would turn up the heat on an issue that is not on the front burner of Washington's media elites. At least not yet.
On July 31, just before the Senate took its summer recess, Coleman announced that he will be looking into the practices of the music industry specifically, whether in its zeal to protect copyrighted material, the Recording Industry Association of America (RIAA) is abusing the power Congress bequeathed to it. The RIAA had on June 25 announced it was going to file "thousands of lawsuits" against individual consumers who download music off the Internet without paying. The copyright laws give the RIAA the power to sue for as much as $150,000 for violating copyright on even one downloaded song.
"I'm a former prosecutor and I believe in strict enforcement of the law, but I also believe in fairness and equity and common sense," Coleman says in an interview with Insight. "I want to measure what's going on here against those standards. ... If you're scooping up innocent people along the way, then you've got to take a look at that."
The RIAA is using power Congress gave to it in the 1998 Digital Millennium Copyright Act to serve more than 900 subpoenas to Internet service providers (ISPs) for the names and addresses of individual users. And, unlike other businesses, it doesn't have to file a lawsuit and get certification from a judge to issue subpoenas. It is even asserting the power of a "roving subpoena" similar to the authority which Congress created in the 2001 USA PATRIOT Act to catch terrorists who flee jurisdictions, says the NetCoalition's Kevin McGuiness. The RIAA suffered a setback in early August when a federal judge in Boston ruled that it did not have the power to issue roving subpoenas in Washington to be served on students at Boston College.
"This barrage of RIAA subpoenas is creating such a backlog at the U.S. District Court in the District of Columbia that the court has been forced to reassign clerks to process the paperwork," Coleman noted in a July 31 letter to RIAA President Cary Sherman. "According to the Administrative Office of the U.S. Courts, the D.C. District Courthouse is 'functioning more like a clearinghouse, issuing subpoenas for all over the country.'"
Along the way, the RIAA has angered several businesses and activist groups. Verizon Communications Inc., one of the Baby Bell phone companies and an ISP, went to court to try to prevent the RIAA from issuing subpoenas without judicial oversight, saying the privacy of its Internet subscribers should be paramount. Groups filing legal briefs supporting Verizon and its subscribers ranged from Public Citizen, founded by the "green" consumerist Ralph Nader, to the privacy-conscious Electronic Frontier Foundation to the conservative American Legislative Exchange Council. Among the concerns are what standards were used in picking the individuals to be subpoenaed some have as few as five downloaded songs listed and how long the RIAA will hold on to the list of names. Although ISPs have been forced to hand over the names in the short run, Verizon is appealing the case. Pacific Bell also has filed suit against RIAA, arguing that the massive subpoena power it asserts is unconstitutional.
In the meantime some conservative activists and GOP strategists see this issue as a chance for Republicans to show concerned Americans that they sometimes do take on big business and stand up for the consumer, particularly when the offending business is wielding government-granted power. Others see it as a wedge issue with which younger voters can be separated from celebrity Democrats in the recording industry.
For Republicans, "It's a great opportunity," says Rep. Chris Cannon (R-Utah), who frequently speaks out against the RIAA on this issue. "The real key for Republicans is recognizing where technology is going and helping out." Cannon serves on the House Judiciary Committee, which has jurisdiction over copyright issues. He tells Insight that GOP lawmakers should point out what he calls "the stupidity of an industry that ought to be courting customers instead of alienating them."
