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Wednesday, November 3, 2010

The Elections

by Thomas O'Toole

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 Today is one of those days where the editorial imperative is to write something/anything about the impact of yesterday's federal elections on technology policy. Politico took a whack at it, though the "sea change" described there appears to involve a change in the cast of characters -- not in the tech policy script itself.

I will venture this: The federal election of 2010 will bring the same sort of change in technology policy that followed the elections of 1992, 1994, 1996, 1998, 2000, 2002, 2004, 2006, and 2008. Not much. Nobody gets elected or loses their seat on the burning tech policy issues of today. The electorate doesn't seem to care about net neutrality or online privacy or software patents or copyright trolls and digital fair use. Over at the Precursor Blog, Scott Cleland, a rabid Google foe who also believes in the unicorn of a competitive telecom market, has uncovered one nugget of truth: no candidate who signed a net neutrality pledge won election last night. Most of those candidates looked like small potatoes to me, so it's far from clear that net neutrality had the impact on the election that Cleland ascribes to it. Still, it's undoubtedly true that there is no juice at all in net neutrality as a political issue. No incumbent legislator signed the pledge.

No matter how hard public interest advocates blow on it, the ember of net neutrality does not look like it is not going to catch fire anytime soon. Until it draws the same sort of voter fervor as same-sex marriage or soaks up some serious coin, it's just coffee table conversation.

Rep. Rick Boucher (D-Va.), a decent individual (he patiently sat through many interviews by BNA reporters) and well-informed voice on online policy, was defeated last night. His loss has been described as a loss for the tech policy world and, while that is undoubtedly true (Boucher championed consumer causes like digital fair use and online privacy), the loss in my estimation is a small one. If the game was football and not politics, one would have to fairly admit that Boucher hasn't completed a pass in a long time and the game score today is not even close.

In Connecticut, Richard Blumenthal (D) was elected to the Senate. Blumenthal is well-known in cyberlaw circles for burnishing his reputation as a law-and-order guy at the expense of craigslist, which Blumenthal claimed is not entitled to immunity under Section 230 of the Communications Decency Act for user-submitted ads promoting prostitution. Does Blumenthal's election presage a legislative effort to weaken CDA 230? Maybe. At a minimum, Blumenthal could call for hearings and declare his abiding interest in making the internet "safer" for everyone or to make internet intermediaries more accountable for user transgressions. Regardless of the merits of any such proposal, online publishers, and foes of online publishers, would predictably respond by throwing money at Congress and participating in hearings and misc other spin-off talking events. As President George W. Bush famously said, "Mission Accomplished." Blumenthal seems to know instinctively how this game is played. If he doesn't, Rep. Joe Barton (R-Texas) can show him how. According to the Washington Post, Barton called for hearings on online privacy just this morning.
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