February 17, 2004

Secrecy, Lies and Legislation

Did a Tennessee legislative committee deliberately keep its meeting secret from opponents of a piece of controversial legislation involving the cable television industry? And did a state official then lie to the opponents of the bill? It looks that way. And I've got the official's email and the audio recording to prove it...

A little background: Last year, legislators considered passing legislation drafted by the Motion Picture Association of America (MPAA) and backed by the cable television industry that would create a state version of the controversial federal Digital Millennium Copyright Act. The legislation would have severely curtailed your freedom to use digital media - hardware and content - in the way you see fit, eroding your privacy rights and your "fair use" rights under federal copyright law, and your First Amendment rights. Under that legislation, the cable industry would have been given the power to declare any device it chose "unauthorized" to be hooked up to the cable outlet in your house – and mere possession of that device would be deemed proof of intent to defraud the cable company.

One practical result of that would be the cable company – which wants to make money renting digital video recorders – could declare the TiVo, a DVR that it doesn't sell, to be unauthorized, forcing you to buy or rent your DVR from the cable company. The cable company could also declare any wireless Internet hub to be "unauthorized," preventing you from using a WiFi device to access your your cable broadband Internet service from more than one PC in your home - unless, of course, you'd paid the cable company more money.

As the Tennessee Digital Freedom Network explained about SB 213/HB 457:

Versions of the bill had already been past in eight states, disguised as a simple update of existing cable theft legislation. In truth, this legislation has negatively impacted citizens' freedom of speech, their access to secure communications, and their use of many networking technologies in those states. It gives Internet service providers (ISP's) unprecedented control over what types of devices and software those states' citizens can use while connected to the Internet, and gives them power to sue users for thousands of dollars per day if they infringe on that control in any way. The legislation ensures that those citizens have far fewer freedoms in their electronic interactions; as the Internet and pervasive computing becomes more a part of our lives, this will translate into control by a few corporations over almost everything that people in those states do electronically.

I first wrote about the legislation, Senate Bill 213 and House Bill 457, on March 31, 2003, and continued writing about it – and the opposition of the Tennessee Digital Freedom Network - extensively throughout the legislative session.

Legislators pushing the bill – Rep. Rob Briley and Sen. Curtis Person, whose son is an executive with cable giant Charter Communications, and is on the Board of the Tennessee Cable Telecommunications Association – eventually backed down, and created a "Communications Theft Study Committee" to study the legislation further.

It reemerged this year as Senate Bill 3101.

And that's where our story picks up today.

Yesterday I received copies of emails sent between Scott Lyon, president of the Tennessee Digital Freedom Network, from Thomas E. Tigue, a deputy Legislative Attorney in the Tennessee General Assembly's Office of Legal Services – the office that drafts legislation requested by legislators.

The TDFN has been monitoring the legislation – but was not notified of a Jan. 26 meeting of the Communications Theft Study Committee, at which the new version of the legislation, SB 3101, was introduced.

In the first email, from Lyon to Tigue on Feb. 2, Lyon expresses surprise that the TDFN was not notified of the Jan. 26 hearing.

The article in the Chattanoogan suggests not only that it is the same bill, but that a Communications Theft Study Committee meeting was held on Monday, January 26, 2004, where the bill was discussed and recommended for passage. It was my understanding that our group was not going to be excluded from the committee discussions, especially considering our involvement to date. Was there a reason we were not notified and invited? Is there another committee meeting scheduled? The bill website just mentions that the bill was filed for introduction and does not indicate any future meetings. There are several provisions of the bill (particularly relating to unintentional effects upon existing technology) that we believe need to be discussed.

Scott:

I did as I told everyone in my last e-mail I was going to do. I did a bill at the request of my clients. Because it was requested by members of the General Assembly, attorney-client confidentiality attached and I was not at liberty to release the draft. I gave it to the requesting members on Wednesday the 21st. It is my understanding that they released it that day although that is something over which I had no control. As was the meeting on the 26th for which sunshine notice was given. Scheduling of the meeting and notice of the meeting is something that is done out of the member's office and not mine. In this case, it was Senator Trail's office. The bill was discussed at the meeting on the 26th and it was recommended by the committee at that time. I was the only speaker at that meeting so you did not miss a chance to speak by not attending.

It is my understanding that there will not be another meeting of the Study Committee but that it will now go to the regular standing committees as any other bill.

I am sorry if you feel you and your group have been excluded from the process but you really have not. As I told everyone earlier, I could not release the bill and did not release it to anyone but my clients and no one else had input into it during the drafting (at the request of my clients). And there was not outside discussion of the bill at the last meeting of the Study Committee. I feel certain you will have ample time for comment during the regular legislative process.

If you have any further questions, feel free to contact me.

Tom

Tigue lied.

He was not the only speaker at the meeting. There WAS outside discussion of the bill at the Jan. 26 committee meeting, which was covered very well by Sidelines, the student paper at MTSU.

We have the audio proof. In this clip, Rep. Larry Trail, chairman of the committee, invites John Farris to speak, and then Brian Allen. It's an 88-second clip from the hearing - in the full audio, available here, the two men speak and answer questions for a total of about 9 minutes regarding an amendment offered by committee member Sen. Jim Bryson, that would have changed the 'court cost' burden of proof issue to one of 'you lose, you pay' – meaning that if the cable company sued someone for theft of cable TV service and lost, the cable company would have to pay the defendant's legal bills.

A network administrator for the Tennessee General Assembly later posted this in a discussion forum on the TDFN website:

This got quite a reaction from the MPAA lawyers, who eventually convinced the members that doing that would 'weaken' the bill considerably. These MPAA lawyers were called upon by the committee to give their opinion, but most notably, no one asked if there was someone there to present any arguments in defense of Sen. Bryson's proposed amendment.

Brian Allen is not an MPAA lawyer. But he is director of corporate security with Time Warner Cable. He also was appointed director of the National Cable & Telecommunications Associations' Office of Cable Signal Theft in 2001. The OCST was formed in 1986 as a joint venture between the NCTA and the MPAA.

John Farris is not an MPAA lawyer either. But he is a lawyer – for the cable television industry.

Farris is an attorney with the very influential Memphis law firm of Farris, Mathews, Branan, Bobango & Hellen, originally founded in 1965 by John Farris' father, Bill Farris, who died last year.

Bill Farris was one of the most influential Democrats in Memphis, a member of the Democratic National Committee and a leading powerbroker and kingmaker in Shelby County politics.

Besides founding Farris Mathews, he also got the cable TV franchise from the Memphis City Commission in 1966, and founded Memphis CATV. As the Memphis Flyer reported (scroll way down): "By taking on national financial partners and doling out stock to influential Memphians, Farris and Memphis CATV prevailed" in a fight over cable television rights in Memphis, and became Memphis CableVision.

Farris Mathews gave $19,275 in total to various state legislative candidates and future governor Phil Bredesen in 2002, and some members of the law firm are registered as lobbyists in the State of Tennessee.

Oh, and did I mention that Farris Mathews sues people on behalf of the cable industry? They handle the cable industry's lawsuits against people accused of theft of cable services. They have a vested interested in how the legislature defines cable theft and, naturally, they don't want the cable company to have to pay defendants it wrongly sues because it would reduce the number of lawsuits – and billable hours.

We're soon to find out what all their $19,275 bought.

Incidentally, the audio recording of the hearing shows that Tigue spoke to the committee before and after Farris and Allen, so there is no chance he left the hearing before they spoke - he knew they spoke to the committee when he sent the email to Lyon stating he (Tigue) was the only speaker.

We're awaiting Mr. Tigue's explanation of why he failed to notify the Tennessee Digital Freedom Network of the hearing, and why, after the hearing, he mislead them by saying he was the only speaker on the legislation. I've sent an email to Mr. Tigue and his boss, Ellen Tewes, the director of the Office of Legal Services, seeking an explanation.

As for SB 3101, it is scheduled for a hearing in the Senate Judiciary Committee – chaired by Sen. Person – today at 3:30 p.m. at Legislative Plaza.