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Wednesday, November 28, 2012

Issa: Stop Us Before We Legislate Again

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U.S. Rep. Darrell Issa (R-Calif.) floated this week a draft bill that would prevent Congress from legislating on internet-related matters for two years. It's not clear exactly what Issa is driving at, though it may merely be that he has the same low opinion of Congress' ability to govern as the rest of the country. Ironically, Congress' habit of dodging tough problems is often cited as a leading cause of voter disenchantment.

Capitol Building

The proposed bill reads like this:

[DISCUSSION DRAFT]

112TH CONGRESS 2D SESSION H.R. _ IN THE HOUSE OF REPRESENTATIVES

Mr. ISSA introduced the following bill; which was referred to the Committee on __

A BILL TO "Create a two-year moratorium on any new laws, rules or regulations governing the Internet."

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ''Internet American Moratorium Act of 2012''.

SEC. 2. DEFINITIONS.

(a) INTERNET SITE.— The term ''Internet site’’ means the collection of digital assets, including links, indexes, or pointers to digital assets, accessible through the Internet that are addressed relative to a common domain name.

(b) INTERNET.—The term ''Internet'' has the same meaning as 31 U.S.C. 5362, and means the international computer network of interoperable packet switched data networks.

(c) REGULATION.— Carries the same meaning as in the Code of Federal Regulations.

(d) EXISTENTIAL THREAT.— The term "existential threat" shall mean a risk that would destroy or irreversibly cripple a significant portion of a critical network.

SEC. 3. MORATORIUM ON NEW LAWS, REGULATIONS, OR RULES.

It is resolved in the House of Representatives and Senate that they shall not pass any new legislation for a period of 2 years from the date of enactment of this Act that would require individuals or corporations engaged in activities on the Internet to meet additional requirements or activities. After 90 days of passage of this Act no Department or Agency of the United States shall publish new rules or regulations, or finalize or otherwise enforce or give lawful effect to draft rules or regulations affecting the Internet until a period of at least 2 years from the enactment of this legislation has elapsed.

SEC. 4. NATIONAL SECURITY EXEMPTION.

(a) PRESIDENTIAL NOTIFICATION. - Upon notification to the House and Senate Judiciary Committees, Intelligence Committees and Homeland Security Committees by the President of the United States, or his designee, of an existential threat to the Internet, the President may, for the purposes of addressing this threat, allow agencies to promulgate rules that have otherwise been suspended by this Act.

(b) LIMITATION. - This exemption in no way allows the President to compel an agency or department to promulgate any rules or regulations that have not already otherwise been implemented into law.

SEC. 5. STUDY LANGUAGE.

The Department of Homeland Security, Department of Commerce, Department of Defense, Department of Justice and Federal Communications Commission shall provide studies regarding the effectiveness of Internet rules and regulations within their jurisdiction. These studies shall be presented to the House of Representatives and the Senate 90 days prior to the expiration of the moratorium presented in this Act.

Hmmm ...

The Hillicon Valley blog reported an Issa aide's remark that IAMA has no specific policy target in mind and is intended to be a "conversation starter." My contribution to the conversation is this:

Empty Gesture. There is a fair amount of legal scholarship indicating that one Congress cannot restrict a subsequent Congress' ability to pass laws. Already I think that what we are talking about here is Grover Norquist-style posturing, not a serious legislative proposal. When working in this genre, the correct move would be to double-down and tack on a super-majority requirement to IAMA. No new internet laws ever unless three-fourths of the Senate and House agree. (As the Seinfeld character George Costanza once said, "You want to get nuts? Let's get nuts!") Perhaps the point is, as the Issa aide said, merely to stimulate discussion on the general topic of internet regulation.

Intended Consequences. IAMA would prevent Congress from acting to protect individual privacy rights in the areas of government surveillance and behavioral advertising, to protect online consumers against fraud and anti-competitive practices, to pass laws relating to identity theft and data breaches. IAMA would prevent Congress from addressing cybersecurity issues and leave the country somewhat helpless to defend against that threat (however large or small one believes it to be). "Regulation" of cyberspace would be left to market forces, a pro-business environment. Preserving the status quo, which I think is Issa's general intent.

Unintended Consequences. The desire for regulation of the Internet economy is not going to go away by legislative fiat. It can be expected to find an outlet in state legislatures. This has already been happening over the past decade (for example, states were "ahead" of Congress on spam and data breach legislation). IAMA would likely accelerate state legislative activity. Congress would be powerless to preempt state privacy, consumer protection, and online sales tax legislation if IAMA became law. Congress would also be unable to respond to changes in international laws affecting the internet.

Further, Congress would be powerless to legislatively overturn judicial decisions that are contrary to government and business positions. Here are some possible rulings that would launch a thousand taxicabs up Capitol Hill:

  • judicial expansion of the Fourth Amendment's warrant requirement for electronic data and communications;
  • judicial findings that the Copyright Act's fair use and first sale doctrines give users of digital content broad rights to time-shift, to space-shift, to deploy technologies that skip advertising, to sell "used" software and ebooks, and to hack technological protection measures to make lawful uses of digital content;
  • a ruling from the D.C. Court of Appeals upholding the Federal Communications Commission's claimed authority to write net neutrality regulations; or
  • a judicial finding that the Federal Trade Commission has the authority to write, on a case-by-case basis, data security rules via enforcement actions under Section 5 of the FTC Act.

IAMA would prevent Congress from acting on behalf of intellectual property owners and other businesses whose interests will be affected by the Internet Corporation for Assigned Names and Numbers' plan to create hundreds of new top-level domains in the next two years. IAMA would also remove the threat of federal legislative intervention, a powerful bargaining chip in negotiations among competing business interests.

Finally, gambling operators have done a lot "policy development work" to create a favorable environment for passage of legislation to regulate internet gambling. Issa's proposal would delay the jackpot for at least two years.

National Security Exemption. The national security exemption in Section 4 appears under-inclusive because the "existential threat" triggering the exemption is a threat "to the Internet," rather than a threat to national security. It is not difficult to imagine a scenario in which the government would need to respond to a non-Internet-related national security threat that would impose "additional requirements or activities" on the internet industry.

Agencies Missing From Effectiveness Study. The agencies whose input is sought on the "effectiveness of Internet rules and regulations" study (see Section 5) are all pro-surveillance, pro-business agencies: the Department of Justice, the Department of Homeland Security, the Department of Defense, the Department of Commerce, the Federal Communications Commission. The Federal Trade Commission is more involved in Internet policy issues than any of these groups, yet the FTC's views on internet regulation are not sought by Issa. Also missing from the study list are federal financial regulators.

"Cybersecurity Cliff." Congress has a difficult time legislating even under favorable conditions. What sort of legislation might emerge from a process in which one side must claim, in order to qualify for the national security exemption, that the nation is under an "existential threat" of some sort or another?

Issa fielded questions regarding IAMA on Reddit today.

(photo credit: sankar govind on flickr)

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