Bush leaves behind a mixed technology legacy

By Declan McCullagh and Stephanie Condon

news analysis Months after being sworn in as president, George W. Bush sat down with reporters and his wife, Laura, for a technology-themed event: a relaunch of the Whitehouse.gov Web site, which previously had been rather dilapidated.

Bush and his aides proudly demonstrated the new features, including photo essays, better access for the disabled, and a kids' area with details about the First Pets. The president said the Web site would let Washington become "more accessible" and let Americans "participate in the process."

Less than two weeks later, the World Trade Center and Pentagon were attacked, the White House shifted to a wartime footing, and Bush never looked back. Instead of a presidency that might have become known for its technology policies--Bush was, remember, a businessman in Texas--he leaves Washington this week amid controversies involving the Iraq war, torture, wiretapping, an economic crisis and bailouts, and a doubled federal debt.

The 43rd president leaves behind a technology legacy characterized less by intent than by casual neglect. Bush and (especially) Vice President Dick Cheney and Attorney General Alberto Gonzales were adamant in their defense of warrantless wiretapping, and made it a priority of their administration. "The president has the inherent authority under the Constitution, as commander-in-chief, to engage in this kind of activity," Gonzales said in 2005 after details became public.

Yet wiretapping and its cousins such as monitoring financial transactions were the exception, not the rule. On more routine, humdrum topics, the White House seemed happy to defer to Congress or to its appointees in various federal agencies, rather than use the authority of the president to focus attention in certain tech topics--something President Bill Clinton regularly did to applause from Silicon Valley firms, whose executives would rarely turn town an invitation to the White House.

That apparent neglect occasionally led to embarrassing results, such as the Bush administration acknowledging last month that it opposed a spectrum plan backed by Kevin Martin, Bush's own appointee who heads the Federal Communications Commission. Bush's Federal Trade Commission warned that Net neutrality regulations would be dangerous, as did the Justice Department; but the FCC went ahead anyway and now is trying to defend its actions in court.

For his part, Bush has stressed that September 11, 2001, was what changed his priorities and his views.

"This evening, my thoughts return to the first night I addressed you from this house--September the 11, 2001," Bush said in his farewell address to the nation last week. "As the years passed, most Americans were able to return to life much as it had been before 9/11. But I never did."

(It may be a little too facile to attribute a near-complete policy shift to that date. There is some evidence that the National Security Agency's wiretapping program began immediately after Bush took office in 2001; a lawsuit filed by Qwest Communications' former chief executive says that he was approached by the NSA at that time, and another lawsuit makes similar allegations involving AT&T.)

The administration's broad claims of expansive executive power and an Iraq occupation that's lasted longer than World War II--coupled with massive deficits and a ballooning federal bureaucracy--eventually estranged some Silicon Valley Republicans who once were Bush loyalists. Venture capitalist Tim Draper chaired three Bush fundraisers circa 2000; last year he gave the legal maximum to President-elect Barack Obama.

"It's good to have a fresh face," Draper said in a recent interview. "At least from the press, we've seen about six years of fear. I'd like to see six years of opportunity and what that could do for our country, and I think that might happen with Obama."

What could, perhaps, have been a Reaganesque technology agenda founded on free market principles with an emphasis on free trade and immigration reform shifted focus to security and surveillance, especially with the creation of the U.S. Department of Homeland Security in November 2002.

"The Bush administration was largely AWOL on technology policy," said Ed Black, president and CEO of the Computer and Communications Industry Association, a technology trade association that supports antitrust regulation and counts Oracle, RedHat, and Sun Microsystems as members. "It was always an afterthought."

The Bush White House got off to a strong start by revamping Whitehouse.gov and launching the President's Council of Advisors on Science and Technology in 2001.

Yet even with the new White House Council, the lack of technology expertise within the administration was apparent from the beginning, said Black, who is listed as giving money to Hillary Clinton, Bill Richardson, and the Democratic Congressional Campaign Committee, but no Republicans.

"There were only a handful of people who by and large were the administration's technology people," he said. "In some cases, while they were fine people, they lacked the clout to make a big difference."

In many ways, a laissez-faire approach
On the other hand, the Bush administration's relatively laissez-faire approach when it came to Internet regulation turned out to be good for business. Bush opposed Internet taxes, though he spent little political capital on the topic. He expended more when supporting immigration reform, even when it put him at odds with conservative members of his own political party.

"Generally, the technology industry has flourished under the Bush administration," said Gary Shapiro, president of the Consumer Electronics Association, the organization that stages the annual Consumer Electronics Show. "It's a legacy of those who came before as well that the U.S. has managed to attract virtually every major company based around the Internet. All of these companies have been in the United States because of U.S. policy and creativity."

One early flashpoint came after a federal appeals court in Washington, D.C., ruled that U.S. District Judge Thomas Penfield Jackson's attempt to break up Microsoft could not stand. Jackson had, in violation of judicial ethics rules, invited favored reporters into his chambers for private chats about the perfidy of Microsoft executives--typically likening them to gangland killers and stubborn mules who should be walloped with a 2-by-4.

The appeals court's ruling overruled Jackson, tossed out his breakup order, and concluded that Microsoft had not illegally "tied" the browser or tried to monopolize the browser market to the detriment of Netscape Navigator. That left the new Bush administration with less antitrust ammunition, and it settled the case a few months later.

Liberal critics of the administration, however, blamed the settlement on a political philosophy hostile to expansive antitrust claims. They found even more to complain in a series of FCC-approved telecommunications mergers that took place during the Bush administration, including the merger between AT&T and BellSouth, Verizon and MCI, and SBC Communications and AT&T. (For its part, the White House characterizes itself as having "pro-growth telecommunications policies.")

The free market principles of the Bush administration were extended globally, and "the focus on free trade has been the most principled and lasting legacy" of the Bush administration, Shapiro said.

Bush can claim as victories the Central American Free Trade Agreement and a trade deal with Peru. He managed to ink deals with Colombia and South Korea, but Congress did not ratify them. Although there was more emphasis on bilateral agreements than multilateral trade deals, Bush's push for free trade was significant for an industry that is thoroughly international, Shapiro said, and especially laudable given the growing anti-trade sentiment in the country, particularly in Democratic and union circles.

Stronger protections for intellectual property were put in place with the Prioritizing Resources and Organization for Intellectual Property Act. Copyright law tends to be relatively bipartisan: there's no reason to believe that a Democratic administration would have been any different. President Clinton signed the Digital Millennium Copyright Act (which was overwhelmingly approved by a bipartisan congressional majority) into law, and Obama has chosen the recording industry's favorite lawyer for a senior administration position.

"There's a gradual increasing respect in the developing world for IP, and I suspect that's a trend that will continue," Shapiro said.

Immigration policy in the Bush years, however, is largely seen as a disappointment from the tech perspective.

"National security concerns and a loss of focus on visas was disappointing for us," Shapiro said. "In terms of attracting the best people around the world, we know we're losing people to countries with less rigorous security processes."

While it was negotiating international agreements, the Bush administration could have done more to create an Internet climate optimal for Internet companies by supporting policies and legislation such as the Global Online Freedom Act, Black said.

"Increasingly, we've seen country after country use the power of the government to block sites and to make companies liable for doing those things," Black said. "The Internet was created by the U.S., and for the U.S. not to have been a forceful advocate of U.S. principals of openness was squandering an opportunity."

The administration's silence on the issue may have been influenced by its defense of warrantless wiretapping, which may have caused it to be reticent on this topic.

"We didn't do any work on (privacy policy) in the last eight years, and the work we did do nobody wants to keep, like the warrantless surveillance program," said James Lewis, a director and senior fellow at the hawkish Center for Strategic and International Studies. "9-11 knocked the privacy balance askew. There were things we needed to do (to ensure national security), but we never tackled them in a way that doesn't weaken privacy."

While the Bush team was collecting information on its own, it did little to stop the private sector from its own questionable data collection, said Jeff Chester of the Center for Digital Democracy, a liberal group that advocates more federal regulation.

The Federal Trade Commission essentially ignored "the greatest threat to privacy we've ever experienced," he said.

The ramifications of commercial data collection is evident in the financial meltdown of the past year, Chester said, given that many people fell prey to online targeting of questionable financial services.

On the other hand, the Justice Department did mount an aggressive challenge to Google's planned advertising deal with Yahoo, even going so far as to hire a well-known litigator for the job. Google walked away from the deal in November, citing antitrust concerns.

Cybersecurity
Homeland Security was supposed to mastermind the government's cybersecurity efforts, combining what had previously been the FBI's National Infrastructure Protection Center, the Defense Department's National Communications System, the Commerce Department's Critical Infrastructure Assurance Office, an Energy Department analysis center and the Federal Computer Incident Response Center. But six years later, the agency proved to be anything but efficient at that task, prompting calls to move the responsibility to the White House or the National Security Agency.

Homeland Security managed to pour $400 million into cybersecurity without coming up with a coherent "cybercrisis" plan. And in 2004, the Homeland Security Department was given a discretionary reserve fund of $5.6 billion for Project BioShield, part of the president's war on terror.

"You had this idea you could apply the tech-heavy solutions we used on the DOD side to fix what were seen on problems on the homeland security side," said Lewis, who chaired CSIS's Commission on Cybersecurity for the 44th Presidency. "The tendency in the U.S. is to spend a lot to reduce risk. We've been doing that since the 1950s, so this might have been the reaction (to September 11, 2001) no matter who was in office."

The tech industry can be grateful for one important Bush administration decision. It never resumed the legal assault on encryption software, including PGP and Web browsers, which the Clinton administration had escalated in the 1990s. Even after the September 11, 2001, attacks, when some Republican senators and think tanks were calling for domestic restrictions on encryption without backdoors for government surveillance, the White House never followed suit.

The White House points out that President Bush signed into law the largest federal R&D budget in history and funded programs like the $1.9 billion Networking and Information Technology Research and Development initiative.

Kei Koizumi, director of the R&D budget and policy program for the American Association for the Advancement of Science, noted that the Bush administration's support for R&D was strong in the first term but cut back substantially in the second term because of overall budget deficits. Large investments in war and a stated desire to cut domestic federal spending drained fund that could have gone to support the American Competitiveness Initiative, which was created to strengthen math, science, and foreign language education in the U.S.

"When you talk about a Bush legacy for science funding you have to talk about legacy for the federal budget," Koizumi said, "and by most accounts that's not great because of debt."

Bush's vision for NASA to carry out human exploration of the moon and Mars has also created a quandary for the agency, which lacks the funding for all of its goals.

"The unwritten legacy is NASA will have to squeeze, juggle, and cut its portfolio to keep doing nonhuman exploration, climate research, and work on the space shuttle," Koizumi said.