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.

There is a growing coalition of companies and groups across the political spectrum advocating for ECPA reform. And members of Congress, including Sens. Patrick Leahy (D-Vt.) and Ron Wyden (D-Ore.) and Reps. Jerrold Nadler (D-N.Y.) and John Conyers (D-Mich.), have introduced ECPA related bills.

Senator Leahy, the author of ECPA, will try to move an amended version of the ECPA reform bill he introduced earlier this year, before Congress adjourns for the election. But most likely this issue will get pushed into next year and end up before a new Congress, where it should be resolved once and for all.

Consumer Privacy

The U.S. and Turkey are the only developed countries without comprehensive laws protecting consumer privacy. Instead, the U.S. has a patchwork of inconsistent, sector-specific (banking, insurance, health care, etc.) laws protecting certain categories of especially sensitive data. Everything else is left to self-restraint, voluntary industry privacy codes and the power of the Federal Trade Commission to take on unfair and deceptive business practices. In the last few years, the FTC has muscled up its oversight and enforcement actions, but the agency is constrained by its regulatory limits.

Survey results from first annual "web census," released in June, show that all top 100 websites installed tracking technology ("cookies") on each visitor's computer. Twenty-one of those top 100 sites placed 100 or more cookies on each computer; six placed more than 150.

The opportunity for abuse of consumer privacy is growing every day. There are tens of thousands of apps downloaded on smartphones and tablets, increasing use of facial recognition technology, license plate scanners and flying drones equipped with cameras. Each of these areas presents a special privacy challenge.

Congress has been dragging its feet on a baseline consumer privacy law for over a decade. For awhile it looked like the current Congress might get to the finish line, The Administration unveiled a "Privacy Bill of Rights" for consumers online, but the momentum faded as Washington got bogged down in election year politics. It's an odds-on bet that the issue will resurface during the next Administration. The challenge is for lawmakers to stay focused on passing a flexible, comprehensive privacy framework that allows for innovation and meets the challenges of an increasingly complex data environment.

It's easy for Congress to simply throw privacy under the bus in an anti-regulatory furor, or to gravitate toward small fixes that are sure political wins. We have done this before. Hopefully, next year we will avoid that fate and get a meaningful law in place.

Digital Copyright

The opposition to and eventual defeat of the SOPA/PIPA legislation was a defining moment for Internet activism. The battle has even managed to insert itself into the popular lexicon, with "SOPA/PIPA" making a recent appearance as part of an answer during the game show "Jeopardy." The public outcry effectively killed these bills, but the issue of "online piracy" is not going away.

The challenge will be finding strategies to reduce infringement without crippling the core values of the Internet: openness, innovation and free expression. Finding the right balance will require an inclusive policymaking process that involves not just content owners, but Internet users, companies and innovation interests as well.

Controversy is already brewing over the practice of seizing the domain names of alleged infringement sites, as well as the negotiation of intellectual property provisions in the Trans Pacific Partnership (TPP) agreement. Government simply has to be more sensitive to legitimate concerns such developments raise, or it will risk fostering growing public disrespect for copyright.

It is also high time for the copyright policy conversation to focus not just on ways to address the significant problems facing rights holders, but on measures to make the system work better for Internet users and innovators as well.

Next year, Washington has the opportunity to start fresh on copyright and see if there is a productive conversation to be had. Not placing my bets, just putting in a plea for a new dialogue.

Internet Neutrality

The FCC's Open Internet rules, adopted at the end of 2010, require Internet service providers (ISPs) to continue to let users access the websites and online services of their choice -- without interference or discrimination by the ISP.

While the rules essentially affirm and protect the Internet's existing and hugely successful structure, they have nonetheless been sucked into the partisan vortex and the shrill rhetorical debate about regulation in general. They also face a determined challenge in court, where Verizon argues that the rules exceed the FCC's statutory authority and even violate Verizon's constitutional rights.

At a high level, nearly everyone agrees in theory that the Internet should remain an open platform where startup businesses thrive and innovation without permission is the norm. But the court case, whenever it is decided, will likely focus renewed attention on the controversial question of how to translate that principle into policy.

A court victory for Verizon could leave Internet neutrality proponents scrambling to prevent the worse case scenario, one in which the online experience of Internet users is entirely subject to the whim of major ISPs. A win for the FCC could put the spotlight on how the rules should be interpreted and applied, but also could generate renewed calls for the rules to be repealed. Indeed, the GOP platform takes broad aim at the FCC, calling the agency a relic of the 1930s with an expertise better suited to regulating railroads than high-tech digital networks.

This is an issue on which it has been hard to get past partisanship and sharp rhetoric. But I find it hard to believe that any one wants to see Internet openness compromised.

Global Internet Governance

A near term issue that is only going to grow in prominence is who should govern the global Internet and how. That issue will move to the fore at a December meeting in Dubai, convened by the International Telecommunications Union -- a United Nations agency -- that will decide whether and how the ITU should regulate the Internet, a move that could pose grave risks to future growth and innovation on the Internet and exercise of human rights online.

The Internet has thrived specifically because it has been governed in a lightweight and decentralized manner. No one country or one global body governs the Internet. Instead, a diverse set of institutions open to all stakeholders has built the Internet from the bottom up.

Leading the charge to put the government centric ITU at the center of the Internet are China and Russia and a leaked ITU document shows that proposals from other nations include a laundry list of bad ideas for the future of Internet, including codifying the right to spy on Internet traffic, censor traffic or tax high-traffic sites like Google.

On this question, there is no partisan divide. The Administration is standing firmly against the ITU "putsch" as are Republican leaders in Congress. Regardless of the outcome in December, the question of global Internet governance is not going away and will only grow more complex as the medium globalizes.

Playing a New Wildcard

The real wildcard in the deck going forward is the nascent Internet freedom movement sparked by opposition to SOPA/PIPA. Neither Washington nor the world can assume any longer that issues can be resolved by a small number of "usual suspects." Entrepreneurs, innovators, investors, Internet activists and ordinary Internet users from around the world are now on alert and ready to leap to the defense of the open Internet.

This loose alliance is not animated by partisanship; it's all about Internet freedom. It has already made a difference post- SOPA in successfully advocating for stronger privacy protections in the cybersecurity bills and in sinking the ACTA treaty in Europe. How this wild card gets played as these complex issues play out in the policy arena may be the most interesting thing to watch.