Right now, technology policy wonks are locked in a bitter dispute about the future of network neutrality. One of us is a technology policy expert who supports President Obama's call for stronger network neutrality regulations. The other is a tech policy expert who thinks it's a terrible idea.
But fortunately, not all technology issues are so divisive. Here are seven issues on which we do agree — and we think policy experts across the political spectrum could get behind these common-sense reforms.
1) Rein in surveillance by the National Security Agency
Last summer, Ed Snowden revealed that the National Security Agency was collecting troves of data on both foreigners and U.S. citizens. In the process, they've also been undermining the security of American products and the internet as a whole. Among other things, we know that the NSA may be:
- secretly weakening essential encryption tools and standards;
- attempting to insert back doors into common software and hardware;
- stockpiling information about security flaws in the commercial software we use every day rather than notifying the companies so that the holes can get fixed;
- and even impersonating popular sites like Facebook and LinkedIn to inject malware.
This behavior is bad for online security, and it could lead to billions of dollars in losses because domestic and foreign customers are increasingly concerned about whether they’re more vulnerable to NSA surveillance if they use American products.
So the NSA's actions have not only eroded our civil liberties and harmed U.S. credibility around the world; they are also damaging America's technology sector. As a result, there's growing support for reforms that would rein in the power of the NSA.
The leading NSA reform proposal is the USA FREEDOM Act, which limits bulk collection of Americans' calling and internet records under the Patriot Act. The legislation enjoys support from technology companies and privacy advocates, but unfortunately, the effort to get a Senate vote on the bill during the lame duck session failed. So Congress won't pass meaningful surveillance reform this year.
The issue will come up again next year because key provisions of the Patriot Act are scheduled to expire next summer — including the provision the government cites to justify bulk surveillance of Americans' phone and internet records. But reforming that provision wouldn't be enough on its own. The NSA relies on other legal authorities, including the 2008 FISA Amendments Act and a controversial executive order to justify spying on Americans. Stricter limits on all of these legal powers will be needed to rebuild the trust of individuals, companies, and governments around the world.
2) Get rid of bad software patents
Patent trolling — when patent holders exploit flaws in the legal system to extort meritless settlements — is a multi-billion-dollar problem. A bipartisan reform bill that passed the House this year stalled in the Senate after trial lawyers asked Harry Reid to kill the reform.
While it is likely (and welcome) that the new Senate will revive legislation to address trolling next year, the reforms in this year's bill mostly treated the symptom rather than the disease. The deeper problem is that patents are being granted for inventions that are broad, vague, obvious, or difficult to definitively classify. This problem is especially acute for patents on software and business methods. If it is too easy to inadvertently infringe on a patent, or if it is too difficult to know when you are infringing on a patent, that is going to lead to a lot of pointless lawsuits.
Recent Supreme Court decisions have begun disallowing some patents for software algorithms or methods of doing business on the grounds that they are too abstract. But Congress could go further, changing the law to prevent low-quality software and business method patents from being granted in the first place.
3) Reduce excessive copyright protections
Copyright is supposed to reward creativity so we end up with more creative works for everyone to enjoy. But over time, copyright holders have lobbied for more and more protection, eating into the public's ability to enjoy and build upon the fruit of that creativity.
Copyright terms have expanded — typically to the life of the author plus 70 years — beyond the point where they could plausibly be offering additional incentives for creators. These term extensions, awarded retroactively, provide a nice payout to those copyright holders who happen to own blockbuster content.
As a result of a 20-year term extension in 1998, no new works are slated to enter the public domain until 2019. These changes hurt the public by limiting access to our cultural heritage, and there's little evidence they've caused more works to be created. We should be debating whether to shorten terms, rather than lengthening them further.
Copyright law is also coming into conflict with 21st-century technology. For example, anti-circumvention laws intended to prevent piracy may have made it illegal to unlock a cell phone. Although Congress passed a law this year narrowly (and temporarily) addressing cell phone unlocking, companies continue to use these anti-circumvention provisions in ways that have more to do with stifling competition than preventing piracy. For example, circumventing access controls is necessary if you want to use a third-party printer cartridge, garage door opener, or auto mechanic. Copyright law should be used to reward creative works, not to lock down devices so they can only be used in one particular way.
4) Don't weaken smartphone encryption
This fall, both Apple and Google announced that they plan to move toward full smartphone encryption by default, meaning that all user data stored on iPhones or Android devices will be protected from the prying eyes of the government, not to mention criminals and the companies themselves. While privacy advocates praised the move, law enforcement officials have reacted negatively.
FBI Director James Comey argues that smartphone encryption will "allow people to place themselves beyond the law" and that it could seriously hinder criminal investigations. Comey and other law enforcement advocates suggest that if the trend continues, Congress should require companies to build "back doors" into their products to so that police officers can — after getting a warrant — access user data.
But that's a bad idea. Strong encryption is good for free speech, personal privacy, and the security of the internet as a whole. By contrast, mandating insecurity to preserve wiretap capabilities is a risky proposition, because even if the intent is to provide only law enforcement with access, it's possible that criminals or foreign intelligence agencies may also discover and exploit these vulnerabilities. Beyond the cybersecurity concerns, backdoors also threaten our information economy, as customers in foreign markets like China have long been wary of American products that may contain government-mandated vulnerabilities.
5) Free up more electromagnetic frequencies to speed up mobile networks
As mobile data traffic grows every year, demand for wireless spectrum grows too. This spectrum is incredibly valuable. Federal officials are currently auctioning a 65 MHz slice of spectrum that is expected to yield over $40 billion — twice the amount originally anticipated.
There's a lot of room for improvement in the way the US manages spectrum resources. Large swaths of spectrum are underutilized. That's particularly true of the 1500 Mhz or so that the U.S. government currently uses. Government spectrum could be worth as much as a trillion dollars.
Repurposing some of this spectrum for mobile connectivity or other high-value uses is a no-brainer. If parts of this spectrum were sold, it would raise billions of dollars for the government. Other spectrum should be earmarked as "unlicensed" spectrum — a classification that enables free wireless technologies like wifi. We expect technology companies will use this free spectrum to produce innovative new wireless technologies.
6) Remove government oversight of internet names and addresses
This March, the Commerce Department's National Telecommunications and Information Association (NTIA) made a quiet but important announcement about the future of the internet’s naming and numbering system: possibly as soon as in 2015, it intends to end its oversight over the allocation of domain names and internet addresses.
The U.S. has been responsible for coordinating these activities since the internet's inception, primarily because the internet originated as a U.S. military experiment. But it's increasingly difficult to defend the Commerce Department exercising unilateral authority over a global resource that is relied upon by billions of non-Americans. The process of deciding what organization or coalition will take over from NTIA is currently underway, with input from the public and key stakeholders being considered.
Some members of Congress have overreacted to the announcement and seem ready to oppose anything that relinquishes U.S. "control" over the internet. But coordinating the internet's naming and numbering system is a largely technical and uncontroversial function that can easily be handled without government involvement.
The NTIA has laid out a set of criteria that must be met before the transition will occur, and has repeatedly said there is no firm deadline — the oversight contract can be extended temporarily if the multistakeholder community isn't quite ready in October 2015, when the current contract runs out. There’s little reason to worry since one of NTIA’s clear red lines is opposing any proposal that would give this oversight authority to foreign governments.
By contrast, interfering with the process could actually create the negative backlash that members of Congress seem so concerned about. A good-faith effort by the United States to responsibly transition oversight to the global community will help rebuild U.S. credibility — and an attempt to go back on our word will lend credence and momentum to advocates of sharing this authority with other national governments. The real risk to the free and open internet will come if we never go through with the transition at all. Speaking of which…
7) Don't let the United Nations expand its role in internet governance
If you've heard rumors about a possible "UN takeover of the internet" in the past few years, chances are they're referring to the International Telecommunication Union (ITU), a little-known UN agency which is responsible for the interoperability of global telecommunications networks. Concerns about efforts to broaden the ITU's role in internet governance have been growing since 2012, when a stark division emerged at the ITU's World Conference on International Telecommunications (WCIT) about whether to include references to the internet in a treaty revision.
A number of countries, including the United States and many European allies, argued that the ITU is not the right place to discuss internet public policy — and that broadening its mandate could harm the open and free internet. These critics ultimately walked out of the WCIT without signing the revised treaty because of the inclusion of references to internet-related issues. Similar concerns resurfaced earlier this fall prior to an ITU meeting in Busan, South Korea, where some governments tried to push proposals that could fundamentally change the way the internet works on a technical level or impose international regulation on global peering and interconnection.
There are numerous problems with expanding the ITU's role in internet governance. For starters, despite taking some positive steps in the past few years, the ITU remains one of the most closed institutions involved in the internet governance arena. Moreover, because the ITU is a UN agency, governments are the primary stakeholders.
That's a stark contrast to most internet governance organizations, where companies, non-profit organizations, and academia participate on an equal footing with governments and can advocate for policies that protect the interests of internet users. Countries like Russia, China, and Saudi Arabia want to expand the ITU's role in internet governance, probably because they believe they'll get a more sympathetic hearing from a secretive body that prioritizes the views of governments over other organizations.
The negotiations in Korea went much more smoothly than they did at the WCIT two years ago, which has prompted some to declare victory and proclaim this a turning point for the ITU. But it's far too early to really gauge the impact of the 2014 meeting or to predict with real confidence that the proposals that were struck down in Busan will not rear their heads again in the next few years. Making sure that public policy debates about interconnection, cybersecurity, and resource allocation stay out of the ITU is still an important goal for protecting the internet we know and love.
Eli Dourado is the director of the Technology Policy Program at the Mercatus Center at George Mason University. Danielle Kehl is a policy analyst at the New America Foundation's Open Technology Institute.