Tech Law Journal logo

Sen. Wyden Describes His Tech Policy Agenda

January 9, 2013. Sen. Ron Wyden (D-OR) gave a speech at the Consumer Electronics Show (CES) in Las Vegas, Nevada, in which he listed and discussed his proposals for legislative and agency action.

He said the foreign IP infringing activity should be dealt with by trade policy rather than by bills such as the SOPA and PIPA. He called for legislation to regulate broadband data caps. He advocated a Congressional review of software patents. He urged expansion of the FCC's December 2010 order regulating broadband internet access service (BIAS) providers to regulate wireless providers the same as wireline. He advocated amending antitrust statutes to prohibit BIAS providers from discriminating against content providers. He advocated rewriting the ECPA to protect privacy. He advocated passage of cyber security legislation, but criticized the leading House and Senate bills in the 112th Congress.

He also identified the People's Republic of China's blocking of access to US web sites, such as Google and Facebook, not as censorship, but as protectionism intended to advantage PRC based competitors. He did not, however, offer a solution to this, other than giving President Obama negotiating instructions.

First, he praised the actions one year ago that blocked further consideration by the House and Senate of the SOPA and PIPA.

The Senate bill, sponsored by Sen. Patrick Leahy (D-VT) and others, was S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", "PROTECT IP Act", or "PIPA". The related bill in the House, sponsored by Rep. Lamar Smith (R-TX) and others, was HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA".

Sen. Ron WydenSen. Wyden (at right) said that "Last year at this time legislation was before Congress that would have censored and broken the Internet. Legislation -- infamously known as PIPA and SOPA -- that would have stifled the growth of the Internet economy and the jobs it creates."

He said that, going forward, dealing with foreign web sites that infringe intellectual property rights should be dealt with "through the prism of international trade policy".

He said the the "centerpiece of our agenda should be guaranteeing innovators the Freedom to Compete. Here is what the freedom to compete in the marketplace means. First, it begins with access to the Internet. Internet Service Providers -- wired or wireless -- must be barred from practices that discriminate against specific content.  The Open Internet order established by the FCC is a good start but it doesn't go far enough because, in reality, it is not comprehensive."

On the other hand, rather than being expanded, that order may be on the verge of being overturned by the U.S. Court of Appeals (DCCir).

The FCC promulgated its BIAS rules in its huge Report and Order (R&O) [194 pages in PDF] of late December, 2010. It is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010.

Sen. Wyden next said that "It is clear that consumers across this country will benefit if there is more competition among Internet Service Providers. This is not the case today. The FCC estimates that 96 percent of the population has only one or two wireline ISPs to choose from." However, he offered no proposals for attaining more competition.

Sen. Wyden then further addressed the network management practices of BIAS providers. "If a provider wishes to slow consumers' Internet connections in order to discriminate against a provider of content, my view is that they should face the anti-trust laws."

He said that he and Sen. Al Franken (D-MN) "are working on legislation to do just that -- to strengthen the anti-trust laws in order to ensure that the major ISPs cannot use their market dominance to pick online winners and losers."

Next, he addressed "broadband data caps". He said that "There is a case for data caps that manage congestion -- manage a scarcity of bandwidth -- but they shouldn't be used to create scarcity in order to monetize data." He argued that "It is time for legislation to establish disciplines on data caps that give innovators and entrepreneurs the opportunity that is a pillar of our nationís economy: the freedom to compete."

Last month, Sen. Wyden introduced S 3703 [LOC | WW | PDF], the "Data Cap Integrity Act of 2012". See, story titled "Sen. Wyden Introduces Data Caps Bill" in TLJ Daily E-Mail Alert No. 2,496, December 21, 2012.

Next, he addressed software patents. He said that the "Congress should begin a review -- a cost-benefit analysis -- of software patents' contribution to the economy. The acquisition of these patents appears less about deploying innovation and more about employing a legal arsenal. The patent system should not, as Julie Samuels at EFF says, operate as a tax on innovation, as it does now. How are you promoting innovation if you stand behind a law that enables a few lines of code to be patentable for 20 years? Software is different than a new invention. It is a building block -- a new set of instructions -- that should be continually built upon and improved."

He also spoke vaguely about "privacy". He said that "it is particularly troubling that the documents Americans leave lying around their kitchen counter receive more privacy protections than the content Americans store in the cloud. A rewrite of the Electronic Communications Privacy Act should address this imbalance."

He criticized the House passed CISPA. He said, "Let's address the goals of CISPA without creating a cyber-industrial complex", an apparent reference to the bill in the Senate backed by Sen. Harry Reid (D-NV). Sen. Wyden twice voted against invoking cloture on that bill.

The CISPA, which the House passed in April of 2012, was HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act of 2011". The bill backed by Sen. Reid was S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012". Neither the Senate, nor any Senate Committee approved that bill.

Sen. Wyden next said that "the protection of intellectual property is important", but "balance between providing rights-holders a monopoly and promoting competition and innovation is just as important."

He predicted that "Members of Congress are going to file legislation that would penalize false representations, strengthen Fair Use, and provide real due process and for seizures of property. These efforts should be supported."

Finally, he discussed some trade issues. He said that "countries are increasingly imposing barriers to digital goods and digital services for non-competitive purposes. China's current practice of blocking Google and Facebook is about giving its domestic providers of search and social networking an artificial advantage. Itís anti-competitive protectionism. The discussions in Dubai last month demonstrated the growing interest in foreign regimes to control and censor the Internet."

He advocated providing "the Obama Administration with clear, statutory negotiating instructions that require it seek open Internet disciplines in all trade discussions."

Most of the legislative and oversight proposals in this speech fall within the jurisdiction of the Senate Commerce Committee (SCC) and Senate Judiciary Committee (SJC). Sen. Wyden is a member of neither Committee. Moreover, in recent years he has attained little success in enacting technology related legislation. However, he has been active and more successful in blocking, delaying, or amending technology related legislation that he opposes.

(Published in TLJ Daily E-Mail Alert No. 2,506, January 9, 2012.)