If something is against the law, but nothing happens if you do it, is it really illegal? This is the question that Representative George Miller (D-CA) would have you contemplate today. Of course, the real question is this: would Congress really waste its time demanding that citizens do something, just to assure them that nothing will happen if they don't?
These brain teasers come courtesy of the College Opportunity and Affordability Act of 2008. The Act is 747 pages of educational legislation, most of which has nothing to do with technology issues. However, there is a small section that has been making some big waves.
Section 494 of the bill addresses “Campus Based Digital Theft Prevention,” and essentially orders educational institutions to develop plans to offer alternatives to illegal downloading. There is no clarification as to what these “alternatives” might be – iTunes site licensing? Sanctioned, internal peer-to-peer networks? Free CD burners for everyone? More disturbingly, there is no express enforcement provision in the bill indicating what happens if an institution does not comply with this provision.
This means one of two things. Either 1) Representative Miller has taken the time to draft a bill that has no impact whatsoever, or 2) the enforcement provision lies somewhere else. Strangely enough, Representative Miller insists that it is the first option. In both a response to an article about the bill on wireteap.com and a fact sheet offered by the Committee on Education and Labor , Representative Miller insists that no educational institution would lose funding because they did not comply with the bill. Any time that a member of congress is insisting that their bill is an unenforceable waste of time, it is important to take a second look.
Delayed Impact
In fact, the enforcement provision lies somewhere else. Educational institutions must be accredited by accreditation associations in order to receive federal funding. At unaccredited institutions, students can not apply for federal financial aid and the institutions themselves can not receive some funds for federal programs. Accreditation associations take “Section IV” compliance into account when deciding if an institution should be accredited. Section 494 is in Section IV of the Education Act. This means that, at least in theory, an educational institution could lose accreditation for failing to comply with Section 494.
This would be a massive punishment. From the view of federal funding, accreditation is what makes Harvard University different from the “university” I set up in my basement. Losing accreditation would destroy the financial viability of an educational institution and prevent its students from qualifying for federal student loans. However unlikely it would be that Harvard would lose accreditation because it did not comply with this provision, it would be irresponsible for a school administrator to ignore any threat that could result in the destruction of the institution itself.
There is also another concern about this legislation. Backers of this bill might know that they could not get the section passed if it was tied to an enforcement clause. Instead, they decided to pass it in two parts. First, they pass the provision. Then, maybe next year, they pass the enforcement. Maybe no one will notice. Even if Representative Miller is right and this bill is an unenforceable waste of time, that does not mean that it will always be an unenforceable waste of time.
Ultimately, this provision has the potential to do a lot of harm and very little good. If it does nothing, as Representative Miller insists, there is no reason to include it in the larger bill at all. The only reason to include it would be if it was there as a placeholder for something else. If that is the case, all we can do is ask proponents of this mystery provision to bring it into the light and have an honest debate about it. Remember, whenever a member of congress is trying to convince you that he is wasting his time in Washington, it is important to take a second look.