Heather M. Tonelli 1

Senator Harry Reid proposed S. 1642, an amendment to the Higher Education Act of 1965. This amendment was a diluted version of his original amendment, S.A. 2314, which was proposed as an addition to the College Cost Reduction Act. Each of these amendments proposed procedures that would work to monitor copyright infringement more effectively on college campuses, especially in the areas of peer-to-peer sharing and digital downloading. Under constitutional standards established in South Dakota v. Dole, Senator Reid's original amendment would not have passed constitutional muster, as its purpose was not reasonably related to the stated governmental interest. The purpose of the College Cost Reduction Act is to make college more affordable. Cutting college costs is unrelated to the goal of effectively monitoring copyright infringement, and therefore Congress would seem to be attempting to sneak a control on peer-to-peer sharing through a seemingly innocuous and beneficial statute. The possible constitutional problem, combined with the public outcry in response to S.A. 2314, resulted in the watered-down version now sitting as a potential amendment to the Higher Education Act of 1965. However, as Congress is continually trying to adjust copyright monitoring to advances in technology, the concerns voiced by the public and by Senator Reid have not been completely resolved.

I. Introduction

Affordability for college education in the United States is of growing importance as the number of students who attend college increases.2 Moreover, when students are contemplating the cost and consequences of attending college in the near future, they are uncomfortably close to considering the possibility of becoming a part of the federal government's “most-wanted” list for copyright infringers. This classification includes a full report complete with personal information and detailed accounts of a person's forays into the world of technology-based peer-to-peer sharing. The disconnect between college affordability and copyright monitoring is the issue with which the public and this paper are concerned.

The Higher Education Amendments of 2007 (S. 1642)3 are proposed amendments to the Higher Education Act of 1965 (HEA).4 This legislation, in conjunction with the already existing text of the HEA, would assist in making college more affordable nationwide and would also encourage the continued improvement of the education system in the United States.5 In an additional effort to accomplish this goal, Congress recently signed the College Cost Reduction and Access Act (CCRA or College Cost Reduction Act) into law.6 The CCRA institutes methods for increasing grant funding and decreasing the cost of student loans, as well as ensuring an increase in the number of excellent teachers and minority-sensitive colleges and universities.7

The original form of S. 1642, S.A. 2314,8 was an amendment that proposed implementing a “campus-based digital theft prevention” system.9 As part of this preventative system, colleges and universities participating in CCRA would have been required to implement a process for identifying and reporting students involved in copyright infringement as a result of “technology-based . . . illegal downloading or peer-to-peer distribution of intellectual property.”10 The amendment would have required the college or university to compile and report information to the federal government regarding the date and time of infringement and specific information about the infringing user.11

This recent development considers the constitutionality of the original proposed amendment to the CCRA, S.A. 2314. It shows that the original amendment was a violation of Congress' constitutional spending clause power under the five-part test articulated in South Dakota v. Dole.12 The resulting public outcry in response to the original amendment and the relevant First Amendment issues fueling this outcry are also analyzed. Finally, the revised version of the amendment, S. 1642, is considered, including an analysis of its seemingly diluted form and the reasons why such a revision was necessary.