Congress may be able to tackle tech issues in 2011

As a new session of the U.S. Congress kicks off, many observers expect little to happen during the next two years -- except, perhaps, for some technology issues.

In the new session of Congress, which starts this month, Democrats control the Senate and Republicans take the majority in the House of Representatives, making for a contentious two years on many issues. But many tech issues haven't been stuck in partisan debates in recent years, and many tech policy experts expect congressional action on several issues in 2011.

Tech-related bills that could move forward this year include a revamp of the 25-year-old Electronic Communications Privacy Act (ECPA), and a proposal by the U.S. Federal Communications Commission to share auction proceeds with television stations and other spectrum owners who voluntarily give up airwaves.

The so-called incentive auctions could get caught up, however, in a heated debate over net neutrality rules that the FCC approved in December. Representative Marsha Blackburn, a Tennessee Republican, has already introduced legislation to strike down the net neutrality rules.

Incentive auctions could be the "most important tech-related item this Congress takes up," said Scott Wallsten, vice president for research at the Technology Policy Institute, an antiregulation think tank. "One big question is whether Congress will give the FCC the necessary authority. Whether they will depends on whether Congress would rather punish the commission for proceeding with net neutrality rules, and therefore not grant that authority, or whether Congress would rather have the money the spectrum auctions could bring in."

Congress should have a window of six to eight months to tackle some issues before lawmakers' attention turns to the 2012 election cycle, said Dean Garfield, president and CEO of the Information Technology Industry Council (ITI), a tech trade group.

"I think there's a real opportunity to get some meaningful legislation passed," he said. Many tech issues have "the dual benefit of being nonpartisan and fitting within the first priority of Democrats, Republicans, House and Senate and the administration, which is get the economy back on track and create jobs.

Still, it may be difficult to pass wide-ranging legislation such as patent reform and some cybersecurity bills introduced over the past two years, with competing interests able to bottle up more controversial pieces of complex bills. Garfield expects that targeted, stripped-down bills will have a better chance of passage.

"I think the chance of having a comprehensive anything in 2011 with this Congress is slim to none," he said.

But if lawmakers want to break off pieces of recent proposals on patent reform or cybersecurity, more limited efforts might have a chance of passing, added Charlie Greenwald, vice president of communications at TechAmerica, a tech trade group. In patent reform, an effort to end the transfer of fees from the U.S. Patent and Trademark Office to the general fund, or a proposal to revamp the fee structure, might have more traction than comprehensive patent reform, he said.

Several large tech vendors, including Intel, Microsoft and Apple, have been pushing for comprehensive patent reform for years, without success. Many large tech vendors want new rules that would make it more difficult for patent holders to sue for infringement and collect huge damage awards, but pharmaceutical companies, small inventors and other groups have opposed the changes.

"The challenge for patent reform has never been amongst political parties but rather amongst large industries central to the U.S. economy, not least of which is technology," said Greenwald, explaining the difficulty of patent reform moving through Congress.

Comprehensive cybersecurity legislation, such as a bill introduced last June by members of the Senate Homeland Security and Government Affairs Committee, may have trouble getting through Congress. But smaller pieces, including a scaled-down data-breach notification bill or funding for cybersecurity research, may have a chance "if comprehensive legislation proves too complex for now," Greenwald said.

Here are some other issues likely to see action in Congress in 2011:

Net neutrality: Republicans will push for a repeal of the FCC's December rules, and a bill has a good chance of passing in the Republican-controlled House. Net neutrality supporters are likely to stall the bill in the Senate, however, and it's tough to imagine how President Barack Obama, a vocal supporter of net neutrality rules, would sign legislation to repeal the rules.

Incentive auctions: In a national broadband plan released last March, the FCC proposed incentive auctions to encourage spectrum holders to give up unused spectrum in exchange for a percentage of the proceeds from auctions. The potential use for television spectrum is mobile broadband, and the proposal seems to enjoy bipartisan support.

Universal Service Fund reform: The FCC's broadband plan also called for a revamp of the USF, the US$7 billion-a-year fund that largely subsidizes traditional telephone service. The FCC's plan would redirect much of the USF to broadband deployment, and several lawmakers have pushed for wide-ranging changes in the program for years. However, a USF reform champion, Democratic Representative Rick Boucher of Virginia, was defeated in November's election, and comprehensive USF reform is a complex issue.

Electronic Communications Privacy Act reform: A coalition of tech vendors and digital liberties groups, including Facebook, Amazon.com and the Center for Democracy and Technology, began pushing for changes to the ECPA in early 2010. The law is outdated because it doesn't give the same protection from law enforcement searches to e-mail messages and documents stored in the cloud as information stored in a file cabinet or on a PC hard drive, they said.

The tech industry and the U.S. Department of Justice both want clarity about the rules, Greenwald said. "ECPA reform has a realistic chance of coming to fruition this Congress," he said. "Comprehensive good-faith proposals are in the works and it is an issue that is not partisan."

Web tracking and privacy: Over the past year, several lawmakers have expressed concern about the ability of online advertising networks and websites to track Internet users. Last year, members of the House Energy and Commerce Committee introduced legislation that would allow consumers to opt out of Web tracking efforts, but several advertising and business groups opposed the bill. The bill also seemed to get caught up in a partisan debate, with several Republicans opposing it, and chances of similar legislation passing in 2011 are small.

The U.S. Federal Trade Commission in December endorsed a do-not-track mechanism in browsers or by other technological means, so look for privacy protections this year more from tech vendors than lawmakers.

Other issues: Other possibilities for action in Congress this year include a free trade agreement with South Korea, reform of skilled immigration programs, corporate tax reform affecting many tech vendors, and spectrum for public safety agencies.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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