Breaking the tech policy logjam wrought in Congress

The next few years will see massive change in Washington. 

More than perhaps any other area, technology policy is ripe for change — for better or worse. Where else has there been such bipartisan agreement across a range of issues, and yet such legislative paralysis? Email privacy protection, easing broadband deployment, digital free trade — these and other tech issues command strong bipartisan support. Yet Congress has passed almost no legislation around tech policy in two decades. 

{mosads}On telecom and technology regulation, Donald Trump’s election will break the logjam — if only because executive and independent agencies like the Federal Communications Commission and Federal Trade Commission will move swiftly to reverse course. The Obama administration’s refusal to work with Congress on net neutrality and other legislation will make it easy to undo its agenda. And the people making the decisions at agencies and departments can be radical reformers. Sen. Minority Leader Harry Reid’s decision to kill the filibuster for nominations (besides the Supreme Court) means Democrats have little leverage in blocking appointments they don’t like. 

But these Republican reforms could be reversed just as easily by the next Democratic administration unless they’re enshrined in legislation. Some might be attached to must-pass bills, which can pass on a party line vote. But the legislative filibuster will likely remain, so Republican legislation will generally require at least eight Democratic votes in the Senate.

The administration and independent agencies can play hardball all they want, but congressional Republicans will need to be pragmatic in negotiating with Democrats. Ironically, the most divisive election since 1860 may provide the catalyst for breaking the legislative deadlock. 

If so, tech policy should be front and center: Bipartisan agreement is possible on many festering issues.  And yet the potential for Congress to get it wrong is enormous, especially if Republicans spend all their political capital on the most divisive issues. Even when Congress has tried to pass good tech laws, it’s often failed: The 1986 Electronic Communications Privacy Act and the 1996 Telecommunications Act both suffered from essentially the same problem: failures of imagination and overly rigid, technology-specific approaches that combined to make the laws counterproductive.

Other laws have been even worse: the PATRIOT Act in 2001 and regular extensions of its surveillance provisions, up until the tentative reforms of the USA Freedom Act in 2015. Only when Congress was faced with a PR nightmare (the Edward Snowden leaks) and the expiration date of Section 215 did it finally enact relatively modest reform.

TechFreedom will do what we’ve done for the last six years in building bipartisan consensus across four core areas: telecom, digital consumer protection, surveillance and disruptive innovation. 

Three years ago, we invited groups on the Digital Left to participate in a “Telecom Consensus Forum.” At the time, they wanted to see what would happen in the then-pending court challenge to the FCC’s 2010 Open Internet Order. Then, thinking they’d won, they lost interest in compromise. That was a mistake: their Pyrrhic victory at the FCC will now turn to ashes. Republicans need to avoid making the same mistake going forward. 

Our model is clear: In 2004, my former think tank, The Progress & Freedom Foundation, convened scholars on the left and right to explore how to re-write American telecom law. This remarkably diverse group included not only free marketeers but also Howard Shelanski, now President Obama’s regulatory czar, and Clinton allies. Together, the two sides produced a clear vision for reforming the FCC to work more like the FTC: the Digital Age Communications Act. That may or may not be where Congress winds up now, but the underlying process is proven. 

So we’re inviting policy experts and academics across the political spectrum to join us in exploring eight critical questions:

1. Broadband: How to promote deployment, adoption and competition?
2. Net neutrality:  How to resolve this issue? 
3. FCC: Does sector-specific regulation still make sense? If so, how should it work?
4. FTC: How should the de facto Technology Commission be updated?
5. Data flows: An “open” Internet means data flows freely around the world. How do we keep digital trade open?
6. Security & Privacy: How can we balance competing privacy and cybersecurity goals?
7. Disruption: How to regulate emerging technology while protecting consumers?
8. Internet Freedom: How can the U.S. retain its moral authority to steer Internet governance, and how can American companies remain market leaders?

We’ll aim to build roadmaps for both sides in Congress towards good legislation that can actually pass. If you’re interested in participating, let us know. No knee-jerk partisans need apply. 

Berin Szóka (@BerinSzoka) is President of TechFreedom, a non-partisan think tank dedicated to technology policy.

The views expressed by contributors are their own and are not the views of The Hill.