What Obama's re-election may mean for technology

Expect debates on cybersecurity, copyright, spectrum and privacy in Congress in 2013

The US presidential election result leaves President Barack Obama in the White House and maintains the balance of power in Congress. In many longstanding technology debates, policy experts see little movement forward, although lawmakers may look for compromises on a handful of issues.

US voters again elected a divided Congress with Republicans in control of the House of Representatives and Democrats the majority in the Senate. Obama and some members of Congress may push for immigration reform, including an expansion of high-skill immigration programs, and expect some lawmakers to push for online copyright enforcement provisions, although likely to be different than the controversial Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) that failed to pass earlier this year.

But tech-savvy voters should expect a whole lot of nothing on several other issues. "If people vote for the status quo they shouldn't be surprised if they get it," Thomas Lenard, president of free-market think tank the Technology Policy Institute (TPI), said in an email. "Only thing that has changed is that Obama doesn't have to run for re-election. Whether that means he'll move toward the center, I don't know."

Here are some tech-related issues to watch out for in coming months:

Immigration: Several large tech companies, including Microsoft, Intel and Hewlett-Packard, have called for an expansion of the H-1B high-skill visa program and a loosening of restrictions on L-1 visas, used for intra-company transfers of employees from foreign offices to the U.S. Microsoft, in September, advocated new US$10,000 H-1B visas, with additional funds used for new education programs.

Immigration reform, addressing both high-skill and illegal immigration, may be an area where the Obama administration and Congress can find compromise, some tech policy experts said. Immigration reform should be among Obama's top policy priorities in 2013, said Kevin Richards, senior vice president for federal government affairs at TechAmerica, a trade group.

After the budget deficit, "I think that immigration reform is the new big-ticket issue for the president," Richards said.

Still, lawmakers have been reluctant to deal with high-skill immigration separate from illegal immigration, and illegal immigration remains a difficult, hot-button issue in Congress. While Congress may move forward on high-skill immigration, the "status quo in the White House could worsen prospects, Arlene Holen, a senior fellow at TPI, said in an email. "Despite claiming the importance of high-skilled immigration, they have been making it much harder administratively to get visas."

Copyright enforcement: Huge online protests in late 2011 and early this year sunk SOPA and PIPA, but expect the Motion Picture Association of America, the U.S. Chamber of Commerce and other backers of stronger copyright enforcement to push for revamped legislation in 2013.

Those groups will likely advocate for lite versions of SOPA or PIPA in an effort to paint opponents of the bills as out of the mainstream, predicted Gigi Sohn, president of digital rights group Public Knowledge and a vocal opponent of SOPA and PIPA. But after millions of Internet users spoke out against SOPA and PIPA, there will also be a "push on the other side" to roll back some past copyright protections that critics see as excessive, she said.

The U.S. could also see a "huge consumer outcry" if a U.S. Copyright ruling against ripping one's own DVD stands and if the Supreme Court rules that consumers cannot resell copyright-protected products produced overseas, Sohn said.

"We now are going to have a national conversation about what's the right level of [intellectual property] enforcement, regardless of who proposes what," Sohn said. "I think there's actually going to be a serious conversation."

Look for the U.S. Department of Justice and the U.S. Immigration and Customs Enforcement under Obama to continue to shut down websites accused of trafficking in counterfeit or pirated products. The two agencies have seized more than 1,500 websites for alleged copyright infringement and counterfeiting during the past two years.

Cybersecurity: Congress debated several cybersecurity bills in its 2011-12 session, but failed to pass legislation. Many of the bills focused on allowing U.S. agencies and private companies to share cyberthreat information with each other, although digital rights and civil liberties groups raised privacy concerns. Several observers, including TechAmerica's Richards and the Center for Democracy and Technology senior counsel Greg Nojeim, expect Obama to issue an executive order on cybersecurity early next year, if Congress does not act in an upcoming lame-duck session.

Even if Obama issues an executive order, there will be a push in Congress to pass legislation to deal with issues such as cybersecurity research and development funding and cybersecurity regulations for federal agencies, Richards said.

But with little change in the makeup of Congress, "it's tough to see the path forward" on a comprehensive cybersecurity bill, Nojeim said.

Net neutrality: With control of Congress split between the Democrats in the Senate and the Republicans in the House, it will be difficult for Republicans to overturn the net neutrality rules the U.S. Federal Communications Commission passed in late 2010. Verizon Communications has filed a lawsuit challenging the rules, and a decision is pending before the U.S. Court of Appeals for the District of Columbia Circuit.

So the split Congress cuts both ways. If the D.C. Circuit overturns the net neutrality rules, as many observers predict, it will be difficult for Congress to reinstate them. With Obama's re-election, the Democratic majority at the FCC will remain, but Sohn questioned whether the FCC has the courage to stand up to large carriers, congressional Republicans and the court.

Privacy: Expect some lawmakers to push for legislation that would require mobile carriers and app makers to disclose whether they are tracking users or get permission to do so. Senator Al Franken, a Minnesota Democrat, and Representative Ed Markey, a Massachusetts Democrat, both introduced mobile privacy legislation during the past two years, but neither bill passed.

Obama has also called for Congress to pass a privacy bill of rights, although there's been no progress so far. Some Republicans have raised concerns about online privacy, however, so there may be room for Congress to move forward next year.

With or without legislation, the U.S. National Telecommunications and Information Administration (NTIA) will continue to work with privacy groups and companies to develop privacy codes of conduct. The NTIA has focused its efforts so far on mobile privacy, where there seems to be the most concern.

Government surveillance of electronic communications: In a related topic, a coalition of digital rights groups and tech companies will continue to push for changes to the Electronic Communications Privacy Act (ECPA), which now allows law enforcement agencies to gain access to unopened emails and files stored in the cloud for longer than 180 days through a subpoena, typically issued by a prosecutor, instead of a judge-issued warrant. Under ECPA, data stored in the cloud has weaker protections than data stored on a suspect's computer.

The Senate Judiciary Committee has a markup hearing on ECPA reform this month, noted CDT's Nojeim. "This is very, very important for cloud providers," he said.

Spectrum: The FCC is moving forward on efforts to auction wireless spectrum given up by television stations. There's bipartisan support for auctioning more spectrum in an effort to lessen the impact of a predicted spectrum shortage. Look for other spectrum arguments, however, with some Republicans questioning how much new spectrum should go toward unlicensed uses like super Wi-Fi.

There's also a looming debate at the FCC over whether spectrum holding limits for large mobile carriers should be changed. Small carriers and digital rights groups are pushing for spectrum caps.

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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Tags telecommunicationAl FrankenlegislationU.S. Court of Appeals for the District of Columbia CircuitBarack ObamaTechnology Policy InstituteKevin Richards4glegalCenter for Democracy and TechnologyMotion Picture Association of AmericaU.S. Federal Communications CommissionGreg NojeimgovernmentThomas LenardU.S. Department of JusticeregulationPublic KnowledgeEd MarkeyArlene HolenprivacyHewlett-PackardU.S. National Telecommunications and Information AdministrationU.S. Immigration and Customs Enforcementintellectual propertycopyrightU.S. Chamber of CommercesecurityMicrosoftinteldata protectionTechAmericabroadbandGigi Sohn

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