Top Tech Hurdles Facing Next President, Congress

Sept. 11, 2012 — -- With the U.S. in high political season, partisan rhetoric is in no short supply. But one area of agreement stands out: both parties have put solid endorsements of Internet freedom in their political platforms.

Common to both the Democratic and Republican platforms are vows to defend the Internet's core values of openness, innovation and free expression and to resist current efforts to shift control of the Internet toward governance by an international organization. All well and good, but can partisanship be laid aside when platform platitudes are replaced by real world policy debates?

The campaign to defeat SOPA and PIPA (the two bills last year that were meant to protect copyrighted material, but at the expense of Internet freedom) suggests that it is possible for a politically diverse group to come together to defend a set of shared values without the corrosive atmosphere of partisan politics.

In the next year and beyond, the president and Congress will have ample opportunity to turn the SOPA moment into a lasting bipartisan effort to take on challenging Internet issues and resolve them in a manner that protects Internet openness, enhances our freedom and encourages innovation. Here are some of those issues on the agenda:

Cybersecurity

Despite years of a consistent drumbeat from government officials and an emerging "Cyber Industrial Complex," about the vulnerability of America's critical infrastructure to malicious hacking, Congress failed to pass a cybersecurity bill this summer after differences over industry regulation stopped the bill in the Senate. The Senate could try again this month or during the lame duck session, but I'm betting the issue will carry into next year for the new Congress to deal with.

Beyond resolving disagreements on regulation, Congress has to ensure that privacy is not compromised while enhancing the security of government and private sector networks. At the top of my list is keeping the NSA from being the primary agency receiving our communications information for cybersecurity purposes.

Meanwhile, the White House is mulling over whether and if it can deal with some cybersecurity issues through an executive order. That route has some support in the Senate.

Government Access to Digital Data

The government's ability to access our electronic communications and other private data is governed by the Electronic Communications Privacy Act (ECPA). Though ECPA was a forward-looking piece of legislation, twenty-five years ago when it passed, it's now been overwhelmed by technological innovation. As a result, a great deal of the personal data that we store in the Internet "cloud" and with mobile providers---email, location, photos and more--- is often available to the government without a probable-cause warrant. In contrast, the 4th Amendment would require a warrant for the same data stored in our desk drawers or home computers.

The difficulty in applying worn legal standards to new technologies has created uncertainty for law enforcement and the companies that hold our communications data. The courts continue to grapple with how and when the government can satisfy its insatiable appetite for access to digital communications, leading to a patchwork of conflicting judicial decisions that just add to the uncertainty. Here is where bi-partisanship can shine.