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Monday, May 2, 2011

Congressional Attention Turns to Internet Issues

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By my count, there are five congressional hearings on internet law issues scheduled to take place in the next week or so -- and two more promised by Senate and House committee leaders. That's a lot of legislative attention, especially when you consider that federal legislators would rather drink the Potomac River than grapple with privacy, antitrust, and net neutrality issues.

Online privacy policy has been avoided for nearly two decades. Knotty internet governance questions have been dodged and booted over to the Department of Commerce (who in turn passed it to the Internet Corporation for Assigned Names and Numbers in 1998). Same story with net neutrality, which Congress dithered over for years until the Federal Communications Commission finally acted -- feebly and possibly unlawfully -- in 2010.

Then problems arise and everyone on Capitol Hill is shocked -- shocked! -- to hear unfortunate tales of traffic throttling, location tracking, data breaches, and rowdy innovation where only the efficient hum of intellectual property licensing should be heard.

Anyhow, on with the shows:

May 4. The House Judiciary Committee Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing on several legal issues arising from the Internet Corporation for Assigned Names and Numbers' plan to permit the introduction of possibly hundreds of new top-level domains. The hearing likely will be a forum for airing trademark owner complaints about their challenges in protecting their brands in the new domains. It's not very likely that ICANN will be applauded for attempting to carry out its government-mandated mission of promoting competition and innovation in the domain name space.

May 4.
The House Energy & Commerce Committee Subcommittee on Commerce, Manufacturing, and Trade will hold a hearing on data breach issues. Press materials announcing the hearing indicate that the hearing is in response to the recent data breach incident involving the exposure of personal information and credit card data stored on the Sony Playstation Network.

May 5. The House Judiciary Committee Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing on net neutrality and antitrust issues. This hearing likely will focus on proposals by Republican legislators to roll back the FCC's December 2010 network management regulations.

May 10. The Senate Judiciary Committee Subcommittee on Privacy, Technology and the Law will hold a hearing on location privacy issues raised by smartphones and tablet devices. This issue was hot hot hot last week, though now it seems to have faded. Apple's and Google's geeky explanations of what is going on seems to have muted the uproar over what was being called cell phone tracking. Add to that the fact that everybody with a cell phone already knows that the devices are collecting and transmitting a reasonable estimation of their location -- and consents to it several time during the course of a day -- and the further fact that no law appears to have been broken and, well, the whole thing seems to be fading into the sunset. Perhaps the hearings scheduled on this issue will breath new life into it.

I just checked the Kerry/McCain privacy bill (S. 799) and there's nothing in there that would require a change in what Apple/Google etc are doing right now as far as location privacy. Location information is not even treated as sensitive information under S. 799, and it is not covered by the notice-and-consent provisions unless the location data is as accurate as GPS technology and the location data being collected and transmitted is paired with at least one good piece of personally identifiable information.

John D. (Jay) Rockefeller IV, chair of the Senate Committee on Commerce, Science, and Transportation, has also promised to hold a hearing on location privacy.

Over in the House, Reps. Edward Markey (D-Mass.) and Joe Barton (R-Texas) have also associated their names with the location privacy question by releasing letters from several telecom companies detailing their privacy practices. According to the Markey/Barton statement, they're satisfied with the answers they got from the telecom companies. They're not so happy with ways that third-party developers access and use consumer data, and they vowed to hold the developers "accountable," whatever that means.

With all this in mind, it is difficult to see these hearings leading to something tangible in the area of location privacy regulation.

May 11. The Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing to discuss AT&T's proposed merger with T-Mobile. This promises to be the first of many hearings on this merger. Unlike the other internet law issues on Congress' agenda, it really is too early to foretell the ending of this story.

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