Few tech issues will move in Congress for the rest of the year

Cybersecurity and privacy issues may still get some action in Congress or at U.S. agencies

As the U.S. Congress begins to gear up for November's elections, several technology-related issues remain unresolved. Lawmakers have pushed in recent months for new cybersecurity legislation, online copyright enforcement provisions, new online privacy protections and an Internet sales tax, but progress will get tougher in the coming months.

As election season approaches, Congress generally finds it difficult to pass controversial legislation. While many tech issues haven't traditionally broken down along partisan lines, several tech-related proposals currently in Congress have generated significant debate.

"It's not safe to say that Congress has hung out the 'closed for business' sign just because it's an election year, but with all the effort and attention paid to campaigning, we're unlikely to see any tough decisions made or compromises reached on these complex technical issues," said Matt Wood, policy director at Free Press, a digital rights and media reform group.

With the election approaching, the emphasis in Congress will be on "cool-sounding headlines," added Mike Wendy, a free market-focused blogger at MediaFreedom.org.

Congressional efforts for the rest of the year will be "mostly form over substance," Wendy said. "They'll almost always relate back to the economy in some manner -- how Congress is working to make it better for Americans. But, they'll just be headlines and not a lot more."

Some issues could still come to the forefront -- if there's a major cybersecurity breach or privacy scandal, for example. Here are some of the tech issues that lawmakers have debated recently, along with their chances for passage yet this year:

Cybersecurity: The art of the possible

About 15 bills in Congress deal with some aspect of cybersecurity, and several congressional observers see some chance for a bill to still pass this year.

Much of the recent debate has been in the Senate, where Senator Joe Lieberman and three other lawmakers introduced the wide-ranging Cybersecurity Act in February.

Among other things, the bill would require operators of so-called critical infrastructure networks to adopt new cybersecurity practices if evaluations by the U.S. Department of Homeland Security find their security lacking. DHS would have to approve the cybersecurity plans.

Democratic leaders in the Senate have expressed interest in moving a bill forward, but a group of seven Republican lawmakers introduced their own bill two weeks later.

The Republicans, including Senators John McCain of Arizona and Kay Bailey Hutchison of Texas, argued that Lieberman's bill contains costly and unnecessary regulations. Their bill focuses more on allowing the U.S. government and private companies to share information about cyberthreats with each other.

For a cybersecurity bill to move forward in the Senate, lawmakers would have to iron out the differences in those two bills or decide on a more narrowly focused bill.

While an expansive bill is not likely to pass, a bill that focused on information sharing, federal IT security, cybersecurity research or new criminal penalties could move forward, said David LeDuc, senior director of public policy at the Software and Information Industry Association. Cybersecurity is one of a handful of issues that enjoys strong bipartisan support in Congress, he said.

"I think it's totally conceivable that we could put together a package with a handful of these different pieces that enjoy support and have it pass in both the House and Senate," LeDuc said. "I feel like I'm more optimistic than most, but everybody agrees it's urgent."

A handful of bills in the House of Representatives focus on information sharing, with the proposals generally giving private companies protections from lawsuits if they share cyberthreat information with each other or with government agencies. But the information-sharing provisions, while popular in Congress, have some detractors.

Some groups, including the Center for Democracy and Technology and the American Civil Liberties Union, have raised privacy concerns about some of the information-sharing provisions. Some proposals are so broad that "they permit companies to provide Americans' correspondence and personal details" to U.S. agencies, the ACLU said in a position paper last month.

Despite the concerns, it could take one attack to make cybersecurity a higher priority in Congress. "Someone hacking into the electric grid and causing physical or human damage could make this more likely," Wendy said.

Online copyright protection: Killed by the Internet

Several lawmakers tried to push bills that would have allowed the U.S. Department of Justice and, in some cases, copyright holders to seek court orders targeting online payment processors, online advertising networks and other services that do business with foreign websites accused of digital piracy or selling counterfeit goods.

Supporters, including the Motion Picture Association of America and the U.S. Chamber of Commerce, pushed hard for the Stop Online Piracy Act (SOPA) in the House and the Protect IP Act (PIPA) in the Senate, but millions of Internet users spoke out in protest in late 2011 and in January.

Supporters of the bills said the DOJ and other agencies have tools to shut down U.S. sites that infringe copyright, but they have few resources to combat infringing foreign sites. Protestors, however, said the bills overreached by allowing the DOJ to get court orders against Internet service providers and search engines, potentially causing cybersecurity problems as U.S. Internet users bypassed domestic services for foreign ones.

The MPAA and other supporters of the bills have not given up. "Senator Leahy and a number of other Senators remain committed to advancing legislation to protect copyrighted material in the online world, so I don't think that would be considered a dead issue around here," said a spokeswoman for Senator Patrick Leahy, a Vermont Democrat and chief PIPA sponsor.

Still, many lawmakers appear unwilling to again upset millions of Internet users in an election year. The issue is near dead for now, but look for new attempts at copyright enforcement legislation in 2013.

Online privacy: Action away from Congress

Online and mobile privacy has been a hot topic in Washington, D.C., in recent months, but bills in Congress seem to be stalled.

Tech and digital rights groups have been pushing for changes to the Electronic Communications Privacy Act, the 26-year-old law that sets the rules for law enforcement surveillance of e-mail and other electronic communications. But an ECPA reform bill sponsored by Leahyhasn't gained traction.

Several lawmakers have also taken aim at online tracking by private companies. Lawmakers have introduced two bills that would write into law mechanisms allowing consumers to opt out of online tracking -- a third bill targets online tracking of children -- but the bills haven't moved forward. McCain and Senator John Kerry, a Massachusetts Democrat, have also introduced a bill designed to give consumers more control over how their personal information is used online, but that bill is stalled as well.

Some tech groups have opposed do-not-track bills, saying new regulations could significantly limit behavioral advertising and the free online services it pays for. Privacy groups continue to push hard for new online privacy protections.

Instead of Congress, more action on privacy may happen at the U.S. Federal Trade Commission, which has taken action against Internet companies that the agency believes have reneged on their privacy promises. President Barack Obama's administration launched a privacy push in February, with the focus on engaging Internet companies, privacy groups and other organizations in writing voluntary privacy codes of conduct.

That so-called multistakeholder process to develop privacy codes "should take the pressure off Congress to act," said Thomas Lenard, president at the Technology Policy Institute, a free market think tank. "Even though the administration is recommending legislation, there's a good argument that we should see what happens with the multistakeholder process first."

Still, any revelations of new privacy problems at major Internet companies could give Congress a new push in the area.

Internet sales tax: Not ripe yet

Several groups have pushed for a national law allowing states to tax the sale of goods over the Internet. Under current law, established in a 1992 Supreme Court ruling, states cannot collect sales tax from companies that have no presence within their borders.

The Alliance for Main Street Fairness, a coalition of business owners, has been pushing hard for legislation that would allow states to collect sales taxes. Four bills in Congress would allow states to collect sales tax from sellers, although eBay and some other Web companies have raised concerns.

States with sales taxes require buyers to pay the tax on purchases from remote sellers, but almost no one does. At some point, Congress is likely to change the law because of concerns that Internet sellers are able to sell at a discount, compared to local retailers,

said Marshal Kline, a senior tax specialist at Dow Lohnes Price Tax Consulting Group.

"This is a matter of basic economic fairness, and for some small businesses it's a matter of economic survival," Senator Dick Durbin, an Illinois Democrat and chief sponsor of the Marketplace Fairness Act, said recently. "Local businesses will never be able to compete if we continue this unfair advantage for huge online retailers."

However, there are still wide disagreements over how the tax should be collected and what small online sellers should be exempt from collecting the tax. Given that some people would see the change as a tax increase, the bills don't appear to have traction going into election season.

Look for a renewed push on Internet sales taxes in 2013.

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.

Copyright © 2012 IDG Communications, Inc.

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