By Amir Nasr
November 27, 2015 at 1:00 am ET
Republicans were in charge of both chambers of Congress this year for the first time since 2006. For the previous four years, the Democrat-controlled Senate was effectively shuttered to serious legislating because Democrats refused to let Republicans turn every debate into a referendum on the Affordable Care Act. As such, no amendments were allowed and debate was squelched. Everyone was frustrated.
When Sen. Mitch McConnell (R-Ky.) became majority leader of the Senate last year, he and then House Speaker John Boehner (R-Ohio) pledged a new and different Congress of lawmakers dedicated to hard-core legislating.
Republican leaders saw their tech policy success hinge on compromise with Democrats. Their projects lived or died based on bipartisan cooperation.
On the plus side of the ledger, the Senate passed a long-debated cybersecurity bill after significant pushback from Democrats (and some Republicans). The bill’s supporters got to yes when they listened to the naysaysers’ concerns and responded to them. It is now on track to be conferenced with the House and sent to the president’s desk before the end of this Congress.
On the other side, Republicans in the Senate and House Commerce Committees didn’t even get off the ground in their attempts to overhaul of the 1934 Communications Act. The Federal Communications Commission dashed Republicans’ hopes at an Internet-era rewrite when it published “net neutrality” rules that would regulate broadband connections like telephone services. With a Democratic majority at the agency, and a president who supports that kind of rule, any bipartisan movement on communications law was halted.
Cybersecurity Prevails At Last
The Cybersecurity Information Sharing Act passed the Senate with overwhelming support once its sponsors directly addressed the privacy concerns of critics. The bill creates an information-sharing program between the private sector and the government, encouraging companies to share data with any agency when a cyber threat is indicated. The legislation would give those companies protection from legal liability when they share data.
The supporters of the bill owe their success partly to high-profile computer hacking incidents that they used to drum up support. At the end of the day, it was tough for critics to argue against the national security interests. Data breaches at the Office of Personnel Management and the Internal Revenue Service went in and out of the news cycle as the debate progressed, as did major hacks on companies like the extramarital Web site Ashley Madison and the credit data broker Experian.
Questions surrounding China’s involvement in the OPM hack helped further rally support around a bill designed to bolster the country’s cyberdefense.
The cybersecurity bill offered an easy way for senators to show they were doing something to combat cyber espionage and Internet theft. Sen. Bill Nelson (D-Fla.) highlighted the “urgent need” to protect businesses against cyberattacks in a floor speech a few days prior to the Senate’s final vote on the measure.
But the sponsors also spent a lot of time massaging the bill to make it palatable to wary lawmakers. A manager’s amendment introduced in the final days of the floor debate largely assuaged the worries of tech companies and privacy advocates who were concerned that the bill would trample on personal privacy. The amendment directly addressed problems that had twice before caused the bill to fail — once as an amendment to the National Defense Authorization Act in June, and once as a standalone in early August.
After changes, the bill passed 74-21.The bill’s sponsor, Senate Intelligence Committee Chairman Richard Burr (R-N.C.), said: “What we saw is how the United States Senate is supposed to function. Where every member gets an opportunity to voice their opinion. Hopefully this is a lesson to us on other pieces of legislation,” he added.
Indeed, privacy concerns had derailed the bill in August, despite a strong 14-1 vote when it passed the Senate Intelligence Committee in March. That single “nay” vote on that committee came from Sen. Ron Wyden (D-Ore.), who went on to spearhead the campaign against what he labeled a “surveillance bill.”
Wyden argued that customers would have no say if companies share data with the government. Wyden additionally criticized the bill because it contained no provisions barring personal information from being shared. Senate liberals like Sens. Al Franken (D-Minn.) and Bernie Sanders (I-Vt.) backed up Wyden’s protests, along with industry groups and tech giants that included Twitter, Apple, and Salesforce.
These critics all eventually dialed back their opposition to the bill, thanks to the massive changes. Burr and Feinstein added extra steps to strip personal information from data shared between businesses and the government. The pair also clarified that data given to the government could not be used to prosecute non-cyber related charges.
A similar set of bills passed the House in April. One measure passed the House Homeland Security Committee, while the House Intelligence Committee passed the other. A House aide said the two versions have been combined into one package for the purposes of a conference committee. The administration also has said it supports the Senate bill.
“I think the [Senate] vote gives us the opportunity to go in with hopefully a strong hand into the conference and enable us to come out without weakening the privacy provisions,” Feinstein said.
Ambitious Telecom Overhaul Withers Immediately
The story of the telecom rewrite isn’t as cheery. The two Commerce Committee chairmen in Congress — Rep. Fred Upton (R-Mich.) and Sen. John Thune (R-S.D.) — started this year with a bold idea. They wanted to update the current communications law to reflect the Internet age. They didn’t get much farther. The massive task of updating the 1934 Communications Act was squelched after the FCC released its “net neutrality” rules.
Congress last updated the Communications Act in 1996. The Internet was a new technology at the time, and 1996 law aimed to promote competition among communications providers just as the lines between telecommunications and broadcasting services were beginning to blur. Telecom gurus in Congress have wanted to update it ever since then.
In December 2013, House Energy and Commerce Committee Chairman Upton and the Communications and Technology Subcommittee Chairman Greg Walden (R-Ore.) unveiled plans to overhaul the “painfully out of date” law to reflect a marketplace dominated by the Internet.
Thune, chairman of the Senate Commerce Committee, praised these efforts and laid out the same goal in June 2014. In a speech to at the Free State Foundation think tank, Thune said the law should continue to allow the Internet to function in as unfettered a manner as possible. “My colleagues and I need to roll up our sleeves and figure out how best to promote an open, competitive, and free Internet,” he said.
They knew they were biting off more than they could chew, observers said. “On top of a Congress that is more polarized than ever, the communications landscape is far more complex than the last time a large reform to the Act was taken on,” said Doug Brake, a telecommunications policy analyst with the Information Technology and Innovation Foundation, in an interview.
But Brake said it was wise for them to start the conversation, even without an end product in sight. “I think they recognized that this is not the sort of bill that they’re going to get passed even in a year. This is a long and big effort, and they have to start from somewhere [by] gathering a bunch of information about different stakeholders and what they think of the possibility of the update and what they’d like it to look like.”
Thune echoed that sentiment in his Free State Foundation speech. “It took several years for Congress to complete the Telecom Act back in the 90s,” he said. “Because of this, some people may think a Communications Act update is an impossible task in today’s political environment and that Congress should not even bother to try. I reject that pessimistic view.”
Since that speech, the power dynamic in Congress has changed, but the Communications Act efforts still fizzled. Thune rose from ranking member to chairman of his committee after Republicans seized control of the Senate. Thune also sits at the third-highest ranking position in Senate Republican leadership. Yet Thune was unable to use the new position of power to advance his mission.
Within the first few weeks of the Republican-controlled 114th Congress, Thune unveiled a draft bill jointly written with his House Commerce counterpart, Upton.
In an op ed, Thune and Upton warned of the perils of regulating the Internet using Title II of the Communications Act. The pair said such a rule could lead to “billions of dollars in higher government fees and taxes,” and that it “could extend new regulations to areas like mobile broadband without recognizing the unique challenges that mobile carriers face.”
The FCC’s highly-politicized net neutrality rules, published in March, ignored those warnings. Title II of the Communications Act gives the FCC the power to regulate common carriers. In its net neutrality rule, the FCC also classified Internet service providers as common carriers. Much to the chagrin of Republicans, the agency then used Title II to officially declare its (massive) jurisdiction regulating the Internet.
The FCC’s actions greatly damaged the efforts of Republican members. The rules were specifically designed to regulate the Internet, using a provision the Republicans didn’t agree with.
The FCC “kind of put a full nuclear discharge in the middle of our whole plan to do a rewrite of the Comms Act,” Walden said in an interview in May. And with that, any plans they had to influence the policy space had to be put on hold – who knows for how long.
Amir Nasr previously worked at Morning Consult as a reporter covering tech.