By an 11-11 tie, a GOP-dominated committee failed in June torequiring that all Internet traffic be treated the same no matter what its "source" or "destination" might be. A similar measure also in the House of Representatives.
But now that this week's elections have switched control of the House back to the Democrats--and they appear to have seized the Senate as well--the outlook for technology-related legislation has changed dramatically overnight.
On a wealth of topics--Net neutrality, digital copyright, merger approval, data retention, Internet censorship--a Capitol Hill controlled by Democrats should yield a shift in priorities on technology-related legislation.
Network neutrality is one of the clearest examples of a partisan rift. In the Senate, all the Republican committee members but one voted against extensive broadband regulations. These regulations are backed by Internet companies such as Google and eBay, but are opposed by telecommunications and hardware providers.
"Clearly, we're going to have to address the question of network neutrality," Rep. John Dingell, a Michigan Democrat, told reporters on Wednesday. Dingell, who has served in the House for more than 50 of his 80 years, is set to be the next chairman of the House Energy and Commerce Committee, which writes telecommunications laws.
Dingell didn't elaborate. But he's previously gone on the recordthat would prohibit network operators from charging content providers extra for premium placement or faster delivery, dubbing it "private taxation of the Internet." (Network operators say they may need to do this to recoup their vast investments in new broadband infrastructure.)
Adam Green, a spokesman for the liberal advocacy group Moveon.org, predicted that the election results would be a boon to the enactment of extensive Net neutrality regulations. "Internet freedom should not be a partisan issue. But Republicans have consistently been standing in the way, and there is zero doubt that the increased Democratic control of Congress will be fantastic news," said Green, whose group lobbies on the topic.
Rep. Nancy Pelosi, the California Democrat set to be the next House Majority Leader, has also been a strong supporter of more Net neutrality regulations. Pelosi said in June that "without Net neutrality, the current experience that Internet users enjoy today is in jeopardy."
The issue of electronic surveillance represents another partisan divide. House Democrats cast 62 votes against the 2001 Patriot Act, but only three Republicans opposed it. Similarly, not one Democrat opposed a more recent amendment requiring the executive branch to disclose its data-mining technologies, while 165 Republicans did.
Caroline Fredrickson, director of the ACLU's Washington office, said she hoped the new Congress would investigate the. "The illegal spying program should be a primary focus of congressional efforts to investigate this administration's abuse of power," Fredrickson said. "The president himself has admitted to authorizing this warrantless spying in direct contravention of the dictates of FISA," or the Foreign Intelligence Surveillance Act.
Longtime Washington observers acknowledge that neither party is that principled when it comes to the topic of electronic surveillance. Rather, positions on privacy can become partisan methods of attacking the party that holds the White House. (Republicans, now stalwart defenders of the Patriot Act, were advocates of protecting privacy during President Clinton's time in office. Republican Sen. Conrad Burns said the White House "has no respect for privacy," and House Majority Leader Dick Armey used words like "Orwellian" to describe administration proposals.)
The ACLU is pinning some of its hopes on Rep. John Conyers, the Michigan Democrat who is set to be the next chairman of the House Judiciary Committee. Conyers hason government surveillance and is in a key position to lead a high-profile investigation.
"Several of the new committee chairs have already expressed their intention to conduct a thorough inquiry into the unlawful actions of this administration," Fredrickson said.
Digital copyright is another topic that likely will be heavily influenced by the congressional shakeup--though more because of new committee chairmen than the shift in party alignments.
Hollywood tends to be solidly Democratic: Employees of companies like Viacom, Walt Disney and Vivendi Universal consistently write checks to Democratic politicians over Republicans, by a. (And Sen. Bob Dole, a Republican, famously bashed Hollywood during the 1996 presidential campaign.)
But in practice, Republican politicians have been nearly as enthusiastic about helping Hollywood. It was Sen. Ted Stevens, an Alaska Republican, whofor television in January. It was a New Jersey Republican, Rep. Mike Ferguson, for digital radio two months later, and another from North Carolina, Rep. Howard Coble, who a plan in mid-2002 to let copyright holders disable PCs used for illicit file trading. And Sen. Orrin Hatch, a Republican, once remotely destroying pirates' computers.
The Motion Picture Association of America said on Wednesday that it encountered bipartisan opposition in the House--from Republican Joe Barton and Democrat Rick Boucher--when trying to enact abill before. Such a law is designed to curb digital TV piracy by making certain receivers illegal to sell.
Because of Barton and Boucher's opposition, "we have bipartisan challenges on that, and we hope to have a bipartisan solution," said John Feehery, MPAA's executive vice president for external affairs. "We'll have to see how it all shakes out with the (new) chairmen."
One question worrying Washington insiders is who will be the next chairman of key subcommittees, such as one dealing with writing copyright laws.
"We're going through a process right now of just deciding what those priorities are going to be for the next year," Feehery said. "We've been working hard on theand broadcast flag--the bottom line is (that) we want to limit the impact of piracy on our industry."
If Boucher gets the nod as chairman, a broadcast flag becomes far less likely and"anti-circumvention" sections become politically feasible. "He would be a big boost to our efforts to allow innovation to develop," said Art Brodsky of Public Knowledge, an advocacy group that has opposed content providers on many digital copyright bills.
If Rep. Howard Berman, however, gets the job, the recording industry and motion picture industry will have a staunch ally as subcommittee chairman. Berman, a Hollywood Democrat, hasin the past that would let copyright holders legally hack into peer-to-peer networks. (Berman currently is the subcommittee's top Democrat, but there's speculation that he'd take a different chairmanship.)
Gary Shapiro, president of the Consumer Electronics Association, said that his group's strategy to oppose to the broadcast flag won't change much. "Our strategy is (to) work with both parties," Shapiro said. "Technology is the field that's growing the national economy. It's not a partisan issue."
Shapiro is worried about what might happen in a so-called lame-duck Congress, which will reconvene briefly this fall under Republican control. Tennesseean Senate Majority Leader Bill Frist, who is retiring, could "try to hurt us badly," Shapiro said. "He indicated he's going to try, with the broadcast flag and audio flag, possibly attached to a spending bill. We're very concerned about that and we're going to be very vigilant."
On other topics:
AT&T and BellSouth: Rep. Dingell on Wednesday reiterated concerns about rushing into approval of a proposed $80 billion. The merger from the U.S. Department of Justice but has stalled in another layer of review by the Federal Communications Commission.
"I think it would be in (the FCC's) interest, I think it would be in the interest of the committee, and I think it would be in the broad public interest" if the FCC delayed its decision until the new Congress is seated, Dingell said. That would let the Democrats hold hearings into its advisability.
House leadership: High-tech companies have reason to be optimistic about the Democrats passing laws in an industry-friendly direction under Rep. Pelosi's leadership, said Josh Ackil. Ackil is the vice president of government affairs for the Washington-based Information Technology Industry Council, whose members include Apple Computer, Microsoft, Dell, Cisco and Intel.
That's in part because the San Francisco representative emerged last November with a Democraticlauded by high-tech companies. The move signaled that "she understands the importance of a strong technology and innovation economy, and the effect that innovation economy has on every other industry," said Ackil, a former staffer to onetime House Democratic leader Dick Gephardt. "She gets it."
Data retention: The Bush administration, led by Attorney General Alberto Gonzales, has been pushing Congress relentlessly forrequiring Internet companies to keep records on what their customers do. Because Democrats have generally been more critical of this move, the proposal could run into more opposition next year.
The Markey factor: Rep. Ed Markey, the Massachusetts Democratic firebrand, has antagonized tech companies for a decade--but with a Republican majority in place since 1995, he's had little luck enacting legislation. Now that may change, especially because Markey is in line to take over the chairmanship of a key Internet and telecommunications subcommittee.
In the past, Markey hasand tried to to delete information about visitors. He attacked after it disclosed user search histories and means more privacy laws are necessary.