InsideHigherEd and the Chronicle are both reporting on an amendment, being proposed by Democratic Senate Majority Leader Harry Reid of Nevada, to the Higher Education Act (which is currently up for renewal). The rule would require universities to take certain measures to curb online copyright infringement by their students, and report their efforts back to Congress. The details of the amendment could still change, but according to InsideHigherEd, the amendment would require colleges to:

* Report annually to the U.S. Education Department on policies related to illegal downloading.
* Review their procedures to be sure that they are effective.
* “Provide evidence” to the Education Department that they have “developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.”

The measure would also require the education secretary to annually identify the 25 colleges and universities that have in the previous year received the most notices of copyright violations using institutional technology networks.

(The text of the amendment is apparently here, though the link is currently not working for me.)

This is the latest in a series of indications that Congress has decided to be concerned about file-trading at universities — or, to put it in plainer terms, Congress is increasingly embracing the entertainment industry’s strategic of targeting universities. This is a part of the that industry’s “bottleneck” strategy to counter unauthorized downloading. What do you do with a problem that happens on a small scale in a million places? One tactic is to go after all of these miniscule violations, or at least enough of them to send the message that each is risky. DRM encryption and lawsuits against individual file-traders both aim to do this. But it’s becoming increasingly plain that individual lawsuits are about as effective as throwing sand at a tidal wave, and DRM is much better at locking legitimate consumers into complex pricing schemes than at actually preventing illicit copying. So, the entertainment industry has also tried a second strategy, squeezing the bottlenecks, where pressure on a select few might extend restriction to the many. This includes the operators of peer-to-peer networks, if they can be found; the network service providers; the electronics and software manufacturers; and schools. By exerting pressure on them, they may be able to convice/compel them to shoulder the effort of policing their users — or at least be held financially responsible for not doing so. In terms of universities, this has meant everything from informal requests to police their students, legal threats against them as network providers, public pronouncements designed to shame them into compliance, directives that they convey pre-lawsuit letters to students — and now, perhaps, a legal obligation.

The problem here is (at least) three-fold. First, “technology-based deterrents,” by which they mean filters imposed on campus networks to block copyrighted materials, really don’t exist in a form that actually does what they want it to. Any system universities might be required to impose would be expensive and unwieldy.

Second, much of this file-trading is happening on closed networks set up by students, that may ride on the infrastructure of the campus network but do not live under university control. To intervene in these, aside from trying to shut them down altogether, would require even more cost and intervention, and would put the school in an icky position of patrolling students’ use of their own information technologies to a very detailed degree.

But most of all, a university is not only an educational institution, it’s also a place for the everyday life of the students who attend. A school administration must attend to providing both. However you feel about it, file-trading is not an interruption of the education of students: it does not interrupt teaching, it does not undermine the intellectual environment, it does not distract from schooling any more than sports or campus events do. So it is only an aspect of the life that students lead — which happens to occur on university grounds, and thus can fall under university scrutiny.

Certainly, schools should, and must, cultivate a safe and lawful environment for both an intellectual and social community to flourish, and that does require enforcing campus rules and helping to enforce laws. But they also must offer a space that allows these young adults to be agents of their own free choice, just as we expect of institutions that provide services for any other community of adults. This actually means that universities must avoid taking advantage of their oversight of student life, and act just as any other provider of resources to a community of people. If we do not require AOL or Earthlink or Verizon to monitor the information activities of their clients for copyright infringement, we must also not require universities to do so either, simply because they can.