What the Election Means for the InternetNovember 7, 2012
After nearly two years of debates, never-ending commercials,
donation solicitations and ever-present polling, Election Day is over and the results are in. As many had predicted, the
balance of government has not changed significantly. Democrats will retain the Presidency and
control of the Senate, and Republicans will continue to control the House,
albeit by a slightly smaller margin than before.
What do these results portend for the issues on which Public
Knowledge and its public interest allies work?
It’s always hard to tell.
Sometimes a seismic event, like a natural disaster or cyber-attack can
dictate policy. Or sometimes, like in
the case of the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA), a
particular industry is driving a policy agenda.
A lot also depends on who is
selected to be the next Chairs of the FCC and FTC. So while all of this is conjecture, my colleagues
at Public Knowledge have been making the rounds on the Hill and at the relevant
agencies. And based on what we are
hearing, these are some of the technology policy issues on which we work that
we believe will get traction in 2013-14.
People are still trying to figure out the long-term effects
of 14 million voices united against SOPA and PIPA, but for certain two of the
short term effects are 1) there is unlikely to be a bill that strengthens
copyright enforcement that moves through either house of Congress without a
thorough debate; and 2) there are now more members and Senators looking at the
possibility of rolling back some of the relentless march towards stronger and
longer copyrights. What makes reform a
strong possibility is that it has support from both sides of the aisle.
Several opportunities present themselves right away, some of
which we have proposed as part of our Internet Blueprint. The Copyright Office’s recent ruling that
ripping one’s DVD to one’s own device is not a fair use makes ripe a fix
ensuring that such activity does not violate the Digital Millennium Copyright
Act. Should the Supreme Court rule that
Supap Kirtsaeng cannot dispose of the textbooks he bought overseas in the
United States without violating copyright law, there will likely be a serious
attempt to reverse that decision.
Otherwise, every American’s ability to take advantage of the first sale
doctrine (which allows the owner of a copyrighted work to dispose of that work
as they see fit) will be severely limited.
There are also serious discussions taking place about trying
for the first time in four years to pass legislation that would ensure that
individuals and institutions can use works under copyright but for which the
owner cannot be found (so-called “orphan works”) will not be subject to huge
Look also for
legislation that would require the US Trade Representative to 1) make more
transparent trade negotiations; 2) ensure balance in intellectual property
provisions in trade agreements; and 3) require Congressional approval of all
trade agreements. Legislation of this
kind is a reaction to the lack of transparency and balance in the Anti-counterfeiting
Trade Agreement (ACTA) and the Transpacific Partnership Agreement (TPP).
Future of Video
The question of how to ensure that Internet video fulfills
its promise is on the minds of many legislators, as is evidenced by the fact
that there were three separate hearings on the issue in the last year. This issue also enjoys bipartisan
interest. There is a deregulatory aspect
that appeals to “free market” legislators and a pro-consumer/innovation aspect
that appeals to those legislators more comfortable with regulation.
Among the issues that are likely to be part of any future of
video bill are retransmission consent reform (including possibly the
elimination of distant signal and other protections for broadcasters), the
elimination of the compulsory license for cable and satellite and a provision
dealing with the increasing use of, and lack of transparency with regard to,
data caps. Should the federal courts
rule that either Barry Diller’s Aereo Internet video service or Dish Network’s
Autohop DVR service is illegal, look for legislation that would reverse such
Of course the FCC has a tremendous role to play in making
the video marketplace more competitive and consumer friendly. The current FCC has largely been hands off –
despite the agency’s own recommendation in the National Broadband Plan, it has done
nothing to ensure that consumers can use any device of their choosing to watch
TV (the so-called Allvid solution), and it has not finished proceedings to
ensure that 1) Online Video Distributors (OVDs) have the same rights and
protections as Multichannel Video Providers like cable and satellite; or 2)
independent programmers are protected from the anticompetitive actions of cable
operators. It remains to be seen
whether the next FCC Chair will make the future of video a priority.
The fate of an open Internet and the FCC’s ability to
protect consumers when it comes to broadband Internet access is now in the
hands of the US Court of Appeals for the DC Circuit. Sometime this spring the Court will render a
decision in Verizon v. FCC, the case challenging the agency’s network
neutrality rules. Verizon’s main
challenge to the rules is that the FCC lacks the legal authority to regulate
the network management practices of broadband Internet access providers. An FCC loss on those grounds will not only
invalidate the rules, but will call into question whether the FCC will have any
power to protect against anticompetitive and anti-consumer actions by broadband
Should the FCC lose the case, regardless of the reason,
Democrats on Capitol Hill will certainly seek to reinstate the net neutrality
rules, and if necessary, give the FCC the authority to do so. Given the control of House by Republicans,
passage of such a bill will largely be a symbolic task. In fact, it is widely assumed that House
Republicans will introduce a bill stripping the FCC of any and all authority
over broadband Internet access and instead giving the Federal Trade Commission
enforcement power over broadband providers. Like the attempt to repeal the net neutrality rules via the
Congressional Review Act, legislation of this kind will go nowhere in the
Since Congress will be deadlocked on this issue, it will be
up to the new FCC Chair to ensure that the agency has the authority to protect
broadband consumers should the court rule against it. And given what happened in Congress when the
current Chairman proposed doing so, one should expect no less of a battle
royale should the new Chair attempt to do the same.
Of course, this is a mere taste of what Congress and the
relevant agencies will attempt to tackle in the next two years. There will certainly be attempts to
regulate/legislate in the areas of privacy and cybersecurity, licensed and unlicensed spectrum. The major
copyright holders will doubtless propose a “less controversial” SOPA and PIPA,
and the Internet Radio Fairness Act will have a second iteration. So stay tuned, because when it comes to
technology policy, the next two years will hardly be boring.