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Technology Issues on Back Burner in US Congress

With a huge fight over health-care reform unresolved, many observers of technology-related legislation before the U.S. Congress have low expectations that major bills will be passed in the remainder of 2009.

Issues including net neutrality, cybersecurity mandates and patent-litigation reform may sit on the back burner late this year as Congress continues to debate controversial plans to provide health insurance to more U.S. residents. "I don't think this is a big telecom session," said Jot Carpenter, vice president for public policy at CTIA, a trade group representing mobile carriers. "Too many of the key players ... are busy with other projects."

Congressional staffers for two tech-savvy lawmakers agreed, saying health care was likely to take up much of Congress' bandwidth. "It's tough to say what will move after Congress deals with health care and appropriations," added Colleen Ryan, a Dell spokeswoman.

Still, it's hard to predict what could still happen as congressional leaders promise to keep lawmakers in Washington, D.C., until late November, said Ari Schwartz, vice president and chief operating officer of the Center for Democracy and Technology (CDT), an advocacy group focused on a free and open Internet.

"October and November could be very long months," he said Tuesday. "You have a lot of staff not working on health care, who have a lot of time to do other things."

In addition, Congress could move forward some tech-related legislation to set it up for passage in 2010. Unlike in an election year, legislation approved in committee in 2009 can carry over and be approved in the full Senate or House of Representatives without having to be reintroduced.

And while health-care reform may not be directly related to the IT industry, a lot of tech vendors are watching that debate closely, said Ginny Terzano, a spokeswoman for Microsoft in Washington, D.C.

"Companies like Microsoft care about the health-care legislation," she said. "Microsoft has expressed support for improvements that will increase access to quality, affordable health care. In addition, we think good legislation can help meet reform goals and create incentives that will drive adoption of innovative information technologies to enhance efficiency and help lead to cost savings."

Here are some tech-related issues that Congress could still tackle late this year:

Cybersecurity

Lawmakers have introduced several bills related to cybersecurity, the most controversial being the Cybersecurity Act, introduced in April by Senators Jay Rockefeller, a West Virginia Democrat, and Olympia Snowe, a Maine Republican.

The first version of the legislation would have allowed the U.S. president to shut down or limit Internet traffic to critical infrastructure information systems during cyber emergencies. A new draft of the legislation would allow the president to declare a cyber emergency and direct a national response, but the power of the president over private networks is undefined.

The new version waters down a provision that would allow the U.S. National Institute of Standards and Technology (NIST) to establish software security standards, but it continues to give the U.S. Department of Commerce the authority to develop or coordinate a national licensing and certification program for cybersecurity professionals.

Rockefeller, chairman of the Senate Commerce, Science and Transportation Committee, seems committed to pushing the legislation forward, but many people in the tech community have raised concerns about the bill. Symantec is concerned that the bill is "too prescriptive," said Adam Rak, senior director of public affairs at the cybersecurity software vendor. "The government having some control over private networks is a concern."

Data-breach notification

Related to cybersecurity legislation, data-breach notification bills would require breached companies or government agencies to notify people whose personal information has been compromised. There are three bills currently in Congress, one of which would require U.S. agencies, as well as interstate businesses, to notify affected people, but none of the three has been voted out of committee.

However, Representative Bobby Rush, an Illinois Democrat, is the main sponsor of a House data-breach notification bill, and he'll push for the full committee to act on the bill. The bill has a chance of passing in the House, said Joshua Lamel, senior vice president for commercial policy and government affairs at TechAmerica, a large tech trade group.

Still, Congress has been pushing for data-breach notification legislation since a rash of breaches in 2005, and lawmakers haven't been able to pass a bill. About 45 states now have breach notification laws, and some cybersecurity experts have questioned the need for a national law.

Net neutrality

In July, Representative Ed Markey, a Massachusetts Democrat, introduced the Internet Freedom Preservation Act, which would require the U.S. Federal Communications Commission to create so-called net neutrality rules. The bill says broadband service providers have a duty to "not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service to access, use, send, post, receive, or offer any lawful content, application, or service through the Internet."

The FCC, however, has already taken action against alleged violators of its own net-neutrality policy statement. Just over a year ago, the FCC ordered Comcast to stop interfering with peer-to-peer traffic on its broadband network, with officials there saying the cable provider was "invasive" in its network traffic management.

Comcast has filed a lawsuit appealing the decision, and there doesn't seem to be much momentum in Congress to pass net-neutrality legislation unless the court rules that the FCC doesn't now have the authority to enforce net-neutrality rules. If that should happen, expect a "fairly quick response" from Democrats in Congress, Lamel said.

"I would be very surprised if the ... net-neutrality bill moves during the fall, given the more pressing efforts to reform health care and increase the effectiveness of financial industry regulation," added Barbara Esbin, a senior fellow at the Progress and Freedom Foundation (PFF), a free-market think tank. "Although interest groups in favor of net-neutrality mandates are running a huge publicity campaign in support of it, at the end of the day, I think that there will be more heat than light on the Hill on this issue."

Privacy/behavioral advertising

Representative Rick Boucher, a Virginia Democrat and chairman of the House Energy and Commerce Committee's Subcommittee on Communications, Technology, and the Internet, has repeatedly said he plans to introduce online privacy legislation this year. The bill would apparently target behavioral, or targeted, advertising practices. The goal of legislation would be to help online users better trust advertisers and give them more control over how their personal information is used, he has said.

Privacy groups have said it's too difficult for consumers to opt out of behavioral tracking, and during a hearing in June, several Republicans joined Democrats in calling for new behavioral advertising rules.

Online advertising companies including Google and Yahoo have said that self-regulation efforts are working. "As one company leads, many others follow or leapfrog by innovating in other ways," Anne Toth, Yahoo's vice president of policy and head of privacy, said in June. "Self-regulation then raises the bar to bring the rest of industry along with commitments in the areas of notice, choice, security, and enforcement."

Patent reform

Some large tech vendors and groups are still holding out hope that an impasse on patent reform can be broken. A Senate Judiciary Committee bill would create new ways of challenging patents and limit damages in patent lawsuits that have passed out of the committee, but groups on both sides of the issue seem unwilling to compromise. The debate has largely pitted large tech vendors against pharmaceutical companies, small inventors and some small tech vendors, who oppose the changes.

TechAmerica's Lamel called on U.S. President Barack Obama to support patent reform and innovation. Large tech vendors have argued that it's too easy for patent holders, some of whom aren't the original inventors, to sue tech companies for a small piece of a product and win huge damages.

"This is a clear opportunity for the administration to show some leadership," Lamel said.

Congress still appears to be interested in patent reform, added Tom Sydnor, a senior fellow at PFF. "But it remains difficult to see broad support for solutions to some of the most difficult remaining questions, like apportionment of damages," he said.

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