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The six tech policy problems Congress failed to fix this year

The six tech policy problems Congress failed to fix this year Ars Technica


The Congressional standstill in tech policy is as visible and as hurtful as it is in any policy area. But there’s little excuse for it. Much of American political life results from the chasm between Republicans and Democrats: big-issue disagreements about taxes, health care, and hot-button social issues.

Technology issues, by contrast, nearly always have zones of bipartisan overlap. Copyright and patent reform, privacy, surveillance, and even (less so) immigration: sure, they’re contentious, but they’re not exactly the kind of radioactive no-fly zones that paralyze other areas of politics. Republicans like to lambast Obamacare, not patent trolls; Democrats campaign for gay marriage, not the right to circumvent digital locks.

So as we commemorate the August Congressional break, let's begin with a list of six tech policy issues that Congress really, really should have addressed this year—but didn’t.

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This one really bothers me:

Three: Reform our vague anti-hacking laws

Changing the Computer Fraud and Abuse Act (CFAA) has been on the digerati wish list for years. This law, passed in 1986, creates heavy criminal penalties for unauthorized entry into “protected computers.” Prosecutors have applied the law to things like violating a website’s terms of service.

It wasn’t until last year when it looked like there might be room, finally, for a breakthrough. It was an opportunity born of tragedy. In January 2013, Aaron Swartz, a hacker and activist who was facing prosecution under the law, took his own life. Swartz’s untimely death created a movement to pare back the elements of CFAA that had long been seen as overreaching.

In the summer of 2013, Rep. Zoe Lofgren (D-CA) introduced Aaron’s Law. In a digital-age twist, she fine-tuned the bill’s language by soliciting feedback on reddit, the site that Swartz helped create. Lofgren found a Republican ally in co-sponsor Rep. Jim Sensenbrenner (R-WI), and the issue was championed in the upper house by Sen. Ron Wyden (D-OR).

After that initial blast of publicity, though, the bill withered and hasn’t moved forward. Not only was it not brought up for a vote, but House Judiciary Chairman Bob Goodlatte (R-VA) hasn’t even brought it to his committee for a hearing.

When asked about the bill’s prospects earlier this month, Lofgren laid the blame for the failure squarely at Goodlatte’s feet. “There is still a pressing need for Computer Fraud and Abuse Act reform, and I stand by the bill I authored and introduced to do just that,” Lofgren told a Forbes writer. “Unfortunately, Chairman Goodlatte has refused to schedule any debate or vote on this important issue—only he can explain why he refuses to move this bipartisan bill forward.”

There’s no clear reason why Aaron’s Law, or something like it, has failed to advance. As with ECPA reform, there could be law enforcement opposition working behind the scenes. But in February, the Justice Department said it would support some modest changes to the CFAA.

Private interests are also pushing against the law. In May, a documentary about Swartz called The Internet’s Own Boy was released. Filmmaker Brian Knappenberger has said that in the course of following up on why Aaron’s Law stalled, he discovered that software giant Oracle was a key component of opposition.

“I was told it stalled in committee and the reason why, we found out a few weeks ago, is because Oracle uses it to go after their competitors,” Knappenberger told a Canadian news site in May.

Oracle has disclosed lobbying on that bill in its lobbying reports, but the company hasn’t commented directly on Knappenberger’s claim. But it's on record as opposing CFAA reform—as are several other big software companies, even while their own engineers surely recognize how ridiculous the current CFAA is. The Software and Information Industry Association (SIIA), directed by executives from companies like Red Hat, Intuit, Adobe, IBM, as well as Oracle, opposes even common-sense changes to the law.

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