2012 promises to be a busy year for lawmakers and regulators as they continue to shape and debate a growing array of issues in the arena of technology policy. From efforts to furnish wireless providers with the capacity they need to handle an explosion of mobile data traffic to cybersecurity and intellectual property, this year figures to be a noisy year in Washington. But apart from the ever-raucous debates, how much will these issues actually advance and how will they affect IT professionals? To help separate heat from light, here is a look at the issues that can be expected to animate the technology policy debates of 2012.
1. Spectrum for Wireless Providers
The proliferation of smartphones and tablet computers has meant that cellular networks are an increasingly popular on-ramp to the Internet. As mobile data usage has ballooned, wireless providers have been pressing hard for the government to free up spectrum that could boost the capacity in their networks. While there is general agreement that more spectrum is needed, the question of how to free up swaths of the airwaves for mobile broadband remains controversial.
The Federal Communications Commission has asked Congress for the authority to conduct so-called incentive auctions, whereby television broadcasters would forfeit their spectrum licenses to be sold at auction, and receive a cut of the proceeds. Since the proposal first emerged, the primary trade group representing broadcasters in Washington has been suspicious, saying that it does not object to auctions that are truly voluntary, but that it would oppose any measure that would pressure its members to abandon their licenses or affect their signal transmissions.
“Our position is the same,” said Dennis Wharton, executive vice president at the National Association of Broadcasters. “We support the bill that came out of the House subcommittee chaired by Greg Walden (R-Ore.). That bill states that the FCC has to make ‘all reasonable efforts’ to protect broadcasters that stay [on the air] against interference and allows TV stations to do mobile DTV.”
But Walden’s bill drew fire from Democratic members of the Energy and Commerce Committee, who objected to the $3 billion that would be allocated to broadcasters to relocate their spectrum, among several other provisions, including the legislation’s proposal for building an interoperable nationwide communications network for first responders.
Apart from the standalone legislation, House and Senate lawmakers had been working toward an agreement to include spectrum provisions in either a year-end spending bill or legislation to extend cuts to the payroll tax, but those talks broke down in December. Senate Commerce Committee Chairman John Rockefeller (D-W.V.), a leading advocate for spectrum reform, blamed House Republicans, whom he said had “unilaterally stopped negotiating with us on spectrum.” Three days later, when lawmakers reached a deal to keep the government funded, Rockefeller again expressed disappointment that spectrum was not a part of the package, but signaled that he would make a spectrum bill a top priority in 2012.
“Although we didn’t get this done within today’s agreement, I intend to push hard in the coming weeks to work out a suitable compromise with the House,” he said in a statement at the time. “Build-out of a public safety communications network is in our national interest. We cannot afford further inaction.”
Meanwhile, wireless players have been moving on their own to beef up their spectrum holdings. Verizon, for instance, recently announced a $3.6 billion deal to purchase chunks of spectrum from cable heavyweights Comcast, Time Warner and Bright House Networks in a complex arrangement that would include a marketing alliance among the participants. That alliance among entrenched rivals has raised eyebrows among regulators and consumer advocates, and the Justice Department is already probing the deal. Two weeks after unveiling the proposed cable partnership, Verizon announced plans to purchase a series of spectrum licenses from Cox Communications for $315 million.
Then there is AT&T, fresh off of its failed attempt to acquire T-Mobile. After regulators scuttled that deal, the nation’s second-largest wireless provider can be expected to turn to other sources to pad its own stock of spectrum. Analysts with Stifel Nicolaus speculated that the “moderately desperate” AT&T could next turn to satellite provider Dish Network, either in an outright acquisition bid or a more limited deal to purchase spectrum. They also noted that with the T-Mobile deal off the table, AT&T is likely to press lawmakers even harder to enact legislation authorizing new spectrum auctions.
2. Piracy – SOPA and Protect IP Act Take Center Stage
Perhaps the most controversial issue set to take the stage early in 2012, efforts to crack down on websites that trade in the flow of pirated content will again be the subject of heated debate.
Under the Stop Online Piracy Act, or SOPA, which is currently in the middle of a markup in the House Judiciary Committee, the Department of Justice would be authorized to seek a court order against a so-called rogue foreign website, one “primarily dedicated” to trafficking in stolen intellectual property, such as pirated movies, music or software, or knock-off pharmaceuticals. With that order in hand, Justice could direct Web players such as search engines, Internet service providers, ad networks and payment processors, to sever ties with the overseas site, removing visibility and access while choking off financial support.
Members of the Judiciary Committee spent two full days in December marking up SOPA, considering some 24 amendments. About 60 amendments had been filed ahead of the markup, according to Kim Smith, a spokeswoman for the committee majority. Smith confirmed that the markup will resume “when we return from recess.”
A similar but somewhat more limited bill is awaiting consideration before the full Senate. The Protect IP Act cleared the Senate Judiciary Committee in May, and is scheduled next to come up for consideration Jan. 24.
The anti-piracy legislation has set in motion a heated battle between backers of the bills such as the movie and music industries and Web firms such Google and Facebook, who along with open Internet advocates argue that the inevitable result of expanded judicial oversight of the Web, especially when implemented at the behest of commercial interests such as Hollywood, will be a dragnet that will shutter legitimate websites. An alternative measure, dubbed the OPEN Act, which would place the disposition of copyright infringement claims against foreign sites under the purview of the U.S. International Trade Commission, has emerged in the House and Senate.
Both SOPA and the Protect IP Act have racked up significant bipartisan support, and are backed by powerful lobbies with deep pockets, including the Motion Picture Association of America, a leading proponent, as well as the U.S. Chamber of Commerce and the AFL-CIO.
In addition to Google and Facebook, with their relatively small but expanding presence in Washington, open Internet advocacy and consumer rights groups such as the Electronic Frontier Foundation and Public Knowledge have been working to galvanize opposition, raising warnings that the measures would lead to censorship of legitimate content and pose threats to the security of the domain name system. Sen. Rand Paul (R-Ky.) has attached his name to a petition drive opposing the legislation. Google Executive Chairman Eric Schmidt recently warned that the bill would effectively “criminalize linking and the fundamental structure of the Internet itself,” rhetoric that supporters of the legislation have dismissed as overblown.
Smith provided a “myth v. fact” sheet that insists that under the bill the Justice Department — and it alone — would be able to secure an injunction against a site only after making its case before a judge, and that only foreign sites whose primary mission was the distribution of infringing content would be targeted, leaving sites such as Facebook, Twitter and YouTube unaffected. Moreover, the bill’s backers charge that Google has a vested interest in opposing the bill for profiting from the traffic (and attendant ad revenue) that the infringing sites generate.
3. Privacy: FTC Readies Framework, EU Takes Lead
Several lawmakers in both chambers have put forth bills that would establish new protections for consumer privacy online. But that’s nothing new. Efforts to enact comprehensive privacy legislation have been a mainstay in tech policy discussions for several congresses. In the coming election-shortened session, and with industry players pressing their case that robust self-regulation can work, even staunch advocates for strong privacy legislation admit they’re up against long odds.
“With the exception of a bipartisan proposal to protect children and teen privacy, legislation is unlikely,” said Jeff Chester, executive director of the Center for Digital Democracy and an often outspoken critic of Web companies’ privacy practices. “This issue is too controversial and involves too many politically connected players.”
Instead, the Federal Trade Commission, the principal enforcement agency for the existing privacy laws, can be expected to continue with its investigation of the practices of individual companies in response to consumer complaints. In 2011, for instance, the agency reached separate agreements with Google and Facebook under which the companies agreed to submit to regular privacy audits for 20 years, among other provisions.
Additionally, the FTC is expected to release a comprehensive framework early in the coming year that will include recommendations (they won’t be binding) for Web companies to improve their privacy stance.
Another report, expected around the same time, will come out of the Department of Commerce, which has been working with the Justice Department and the White House Office of Science and Technology Policy to develop its own white paper that will lay out something like a privacy bill of rights. Upon release of the white paper, Commerce plans to convene meetings with stakeholders such as Web companies and consumer advocates to develop practical codes of conduct, further advancing the administration’s position on the issue and potentially influencing the course that privacy legislation takes in Congress.
“The action is going to be in several places. It’s going to be at the FTC, at the Department of Commerce and in Brussels,” Chester said. “The big invisible player here is the European Union, which is in the process of significantly revising its privacy [framework],” he added.
The EU has historically taken a more rigorous approach toward regulating privacy than have U.S. authorities. Chester suggested that if the new rules under development in Europe raise the bar higher, that will impose additional privacy restrictions on U.S. companies that operate globally, and could inspire domestic regulators to follow the lead of the EU.
“The Europeans could easily become the global standard,” he said.
4. Net Neutrality to Get Its Day in Court
Sometimes referred to as the third rail of technology policy, the contentious issue of network neutrality — the prohibition against Internet service providers blocking or slowing access to specific websites — will largely turn on the outcome of a legal challenge to the rules the FCC enacted in 2010. The lawsuit, brought by Verizon Communications, rests with the D.C. Circuit Court of Appeals, which has already struck down an FCC order rebuking Comcast for throttling traffic to peer-to-peer service BitTorrent.
After a court threw out Verizon’s initial complaint in April on procedural grounds, the telecom giant refiled its lawsuit in September, following the publication of the FCC’s net neutrality rules in the Federal Register. The FCC quickly filed a motion to dismiss.
House Republicans, incensed over what they argue is a broad power grab by the FCC that could lead to excessive regulation over all manner of Internet activity, won passage of a bill to repeal the net neutrality rules in April, but that measure is a non-starter in the Democratic-led Senate. This fall, House GOP members called on President Obama, an avowed supporter of net neutrality, to overturn the rules as part of the administration’s broader review of federal regulations.
While lawmakers can be expected to continue to make noise about the FCC’s action in 2012, it is really the decision of the court that will go a long way toward determining the next stage of the net neutrality debate. Should the agency prevail, its rules prohibiting all service providers from blocking legitimate websites and mandating disclosures about their network management practices will remain in effect. The order also bars fixed wireline providers from unreasonably discriminating against specific sites, though wireless carriers are exempt from that provision.
If Verizon carries the day and the court vacates the FCC’s order, the agency will effectively be back to square one, as it was after the Comcast decision. That will inevitably revive talk about reclassifying broadband as a so-called Title II telecommunication service, a move that would put the FCC on more certain jurisdictional ground, but would provoke howls of protest from ISPs, GOP lawmakers and some Democrats. FCC Chairman Julius Genachowski floated that proposal in 2010, and came under intense political fire for doing so. If the FCC loses in court, it remains an open question whether he would choose to go that route again, devise a novel legal argument for a new set of rules, or table the net neutrality issue altogether.
5. Cybersecurity — Who Will Take Charge?
Ominous stories about massive breaches of digital systems continue to permeate the news, but enacting legislation to strengthen the nation’s cybersecurity posture has been tough political sledding. In this congress, as in previous terms, several competing proposals are on the table in both chambers. The fault lines of the debate include which government agency should properly assume oversight authority for protecting critical infrastructure, the extent to which the executive branch should be empowered to intervene in the event of a major cyber attack, and the impact a new framework to share information about potential threats more effectively across the public and private sectors might have on consumer privacy.
The legislative proposals also vary in their scope. While some lawmakers have drafted bills that would establish a comprehensive blueprint for cybersecurity policy, others have taken a more limited approach, focusing on the information-sharing aspect of the issue.
In the Senate, Majority Leader Harry Reid has signaled that he plans to allot floor time for a debate on cybersecurity legislation in the first working period of 2012. It remains unclear, however, what the proposal to be considered will contain. Cybersecurity spans more committee jurisdictions than perhaps any other tech policy issue, ranging from commerce and homeland security to judiciary and foreign relations. Reid noted in a letter to Minority Leader Mitch McConnell that cross-committee working groups had been convening to produce a comprehensive bill that could garner bipartisan support.
Leaders of the Senate Homeland Security and Governmental Affairs Committee praised Reid’s plan to schedule floor time for a cybersecurity debate. “Every day Congress fails to strengthen the cybersecurity of the nation’s critical infrastructure is another day of unacceptable risk for our country,” Committee Chairman Joe Lieberman (I-Conn.), Ranking Member Susan Collins (R-Maine) and Tom Carper (D-Del.), the chairman of the Federal Financial Management Subcommittee, said in a statement. “Hackers, criminals, and antagonistic foreign powers are maliciously probing our cyber defenses every day on an unprecedented scale, and it is no secret they have found our defenses to be vulnerable.”
Any Senate measure of course would have to be squared with legislation in the House, where various measures to tackle the information-sharing aspect of the issue have emerged. Many lawmakers favor codifying a framework for sharing information about cyber threats, though proposals differ in where coordinating authority should be housed — the public or private sector, and, if in government, under the aegis of a civilian or military agency. Consumer advocacy groups have also raised privacy concerns about legislation that would create a broad, open-ended system for sharing information.
Kenneth Corbin is a Washington, D.C.-based writer who covers government and regulatory issues for CIO.com.