Grading the Tech Policy Makers: A First Quarter Recap

It's been a busy 2012 on the Hill. As legislators and policymakers grapple with an array of issues central to the policy agendas of companies in the technology industry, CIO.com takes stock of how Washington has moved on intellectual property, cybersecurity, privacy and spectrum in the first quarter of 2012.

In the technology policy world, the year opened with what appeared to be a short road to passage of controversial intellectual property legislation that-- while opposed by civil rights and consumer advocacy groups and many Web firms-- had the backing of the heavyweights in the film, television and music industries, special-interest groups that are used to getting their way in Washington.

Lawmakers have also refocused their attention on cybersecurity, continuing the long-running debate over what, if any, legislative measures are necessary to improve the security of critical digital systems. Meantime, the privacy debate continues to simmer, with policymakers releasing two prominent reports advancing the administration's stance on protecting sensitive information online. Then the ongoing battle between wireless providers who say they desperately need more spectrum to handle the surge in mobile data traffic and the television broadcasters who are reluctant to give up their airwaves licenses saw something of a resolution.

In tech policy, as in other heavily lobbied sectors of government activity, it can sometimes be hard to separate the heat from the light. In that spirit, we've put together a recap of the movement of some of the most prominent industry issues over the first three months of 2012, a year with an abbreviated legislative calendar owing to the fall election.

The Demise of SOPA, PIPA

With the strong backing of groups like the Motion Picture Association of American (MPAA) and the Recording Industry Association of American (RIAA), two slightly different versions of anti-piracy legislation in the House and the Senate seemed to be on the fast track toward passage in each chamber and reconciliation in conference.

The bills, the Stop Online Piracy Act (SOPA) in the House and the Senate version, the Protect IP Act (PIPA), would have given rights holders new mechanisms to pursue legal action against websites that trafficked in pirated content such as illegal digital downloads or knock-off software, with the ultimate goal of forcing the infringing sites to shut down.

The expressed purpose of the bills was to target so-called rogue foreign websites whose primary mission was the sale or distribution of material that violates intellectual property rights. Supporters of the measure made a compelling case that IP infringement amounts to billions of dollars in lost revenue for U.S. companies, which, in turn, negatively affects job growth.

But as the bills worked their way through the House and Senate, and appeared poised for the endgame debate early this year, a broad wave of opposition began to emerge, with digital rights advocates, civil liberties groups and many powerful tech companies protesting that the measures would create a dragnet that would ensnare legitimate companies, with a particularly harmful effect on startups. Some worried that popular social media platforms like Facebook and Twitter could be affected. Others protested that the bills would give powerful entertainment lobbies undue leverage over the Internet, with the inevitable effect of stifling innovation and free speech.

Perhaps a bit reductively, the debate turned on issues of censorship and old media vs. new. It also showcased the remarkable ability of a loose collective of concerned parties to use the Internet to coalesce their opposition into a show of strength that ultimately killed the bills. Companies like Google collected signatures to a petition, while sites like Wikipedia, Reddit and numerous others went dark for a day in protest against SOPA and PIPA. Co-sponsors withdrew support, as did prominent anti-piracy trade groups such as the Business Software Alliance.

In the end, with supporters fleeing in droves, the bills were tabled, and now even prominent backers like the MPAA acknowledge that they are effectively dead, though of course those same groups will continue to advocate for new mechanisms to defend their members' intellectual property rights.

Cybersecurity

Lawmakers of all stripes acknowledge that the policy landscape has not kept up with the rapid emergence of online threats from hackers and state-sponsored attackers at home and abroad. But consensus about how to address the challenge has been tough to come by.

Fault lines in the debate have included which government agency should take the lead in securing civilian government and private-sector networks, concerns over privacy and civil liberties protections, emergency powers for the president and, principally, the extent to which an executive agency should have regulatory authority over operators of critical digital infrastructure in the private sector.

One bipartisan bill that has been introduced in the Senate takes a comprehensive approach, and though it would not set up a cyber authority within the White House, it would grant the Department of Homeland Security new regulatory powers over private-sector operators. A GOP-backed bill in the upper chamber was introduced as an alternative that would instead focus more narrowly on mechanisms to enable government and businesses to share information about cyber threats without concern for legal or regulatory consequences.

The comprehensive measure in the Senate, backed by Joe Lieberman (I-Conn.), Susan Collins (R-Maine), John Rockefeller (D-W.V.) and Dianne Feinstein (D-Calif.), was put on the fast track by Majority Leader Harry Reid, who had signaled that he planned to bring the bill to a floor debate shortly, though lately other issues such as the "Buffet rule" bill have jumped to the head of the line for Senate consideration. A Reid spokesman could not immediately be reached to comment on the latest timetable for the floor debate on the Lieberman-Collins cybersecurity bill.

Backers of the Republican alternative, led by Arizona's John McCain, have objected to the process of the cybersecurity debate, which has seen the comprehensive measure sail through committee without debate or an opportunity to introduce amendments. Reid and others have insisted that the floor debate will be an open process that will offer ample time for members to air concerns and bring forth amendments.

In the meantime, several committees in the House have been examining the cybersecurity question, and GOP leaders plan to bring the various piecemeal bills up for debate later this month in what they are reportedly dubbing "cyber week." One of those measures, the Cyber Intelligence Sharing and Protection Act (CISPA), easily passed the House Intelligence Committee in December. That measure, backed by intelligence committee Chairman Mike Rogers (R-Mich.) and Maryland's Dutch Ruppersberger, the ranking Democrat on the panel, would facilitate new channels of information sharing between businesses and the federal government.

While CISPA saw strong bipartisan support at the committee level, it has lately become the target of vocal opposition by civil rights groups like the Center for Democracy and Technology and the Electronic Frontier Foundation, which have warned that the bill is overly broad, and could lead to excessive monitoring and surveillance, and result in information being shared for the sake of protecting intellectual property. In that sense, the groups are raising concerns that are similar to their objections to SOPA and PIPA, and EFF and others have declared the week beginning April 16 a "week of action opposing CISPA."

"CIPSA would allow ISPs, social networking sites and anyone else handling Internet communications to monitor users and pass information to the government without any judicial oversight," EFF Activism Director Rainey Reitman said in a statement. "The language of this bill is dangerously vague, so that personal online activity -- from the mundane to the intimate -- could be implicated."

Privacy

Compared to intellectual property and cybersecurity, lawmakers have been fairly quiet in their address of the ever-contentious online privacy debate this year. Some of that hesitation has been the product of the continued efforts of industry groups to demonstrate that self-regulation can be an effective tool to protect privacy. It also owes to the fact that lawmakers had been anticipating the release of two major reports that would go a long way toward defining the administration's position on steps needed to protect online privacy.

Both reports, one from the White House and the Department of Commerce and the other from the Federal Trade Commission, materialized in the first quarter of 2012.

In February, the White House and Commerce Department unveiled a so-called consumer bill of rights that called for industry participation to give Internet users more visibility into how their information is collected and used, as well as tools to limit online tracking and profiling, including a do-not-track mechanism built into the Web browser. Following up on that framework, commerce officials are convening a series of talks with industry representatives, privacy advocates and other concerned parties to fine-tune the implementation of do-not-track and other self-regulatory guidelines in the hopes of garnering broad support among advertising players and Web companies.

A little more than a month after the White House framework dropped, the Federal Trade Commission issued its own privacy report, endorsing a similar self-regulatory approach, including the do-not-track mechanism. While both documents expressed the hope that self-regulation can achieve meaningful consumer protections and warned against overly prescriptive regulations that could chill innovation within the fast-moving Internet industry, they also suggested that Congress should develop legislation to codify baseline privacy safeguards.

Spectrum

For the past few years, the wireless industry, led in Washington by the trade group CTIA, has been forcefully pushing for legislative action to make available a greater portion of the wireless airwaves, or spectrum, for mobile broadband networks. Those groups have a sympathetic ear at the Federal Communications Commission, which has been asking Congress for authority to conduct so-called incentive auctions, whereby television broadcasters would be invited to relinquish their spectrum licenses in exchange for a portion of the revenue generated by resale at auction.

Those efforts were met with forceful opposition from the National Association of Broadcasters, which railed against any provision that would force its members into abandoning their licenses if the incentive auctions were not truly voluntary, and raised concerns over the conditions under which stations that remained on the air would be forced to operate.

A bill signed into law in February granted the FCC authority to hold auctions for repurposing spectrum, but those provisions, included in a payroll-tax package, granted broadcasters some of the protections they sought. Many of the remaining details will be left to the FCC to determine, a process that will include the collection and review of comments from interested parties and could take months to play out.

Kenneth Corbin is a Washington, D.C.-based writer who covers government and regulatory issues for CIO.com.

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