SOPA blowback, and other tech predictions for 2013

WASHINGTON -- The most controversial tech issue taken up by the outgoing Congress was, by far, the Stop Online Piracy Act (SOPA). This legislation drew a humongous public outcry that prompted a wholesale retreat by its supporters. But thanks to the lessons learned from SOPA, there may be new opportunities for lawmakers in the next Congress, which takes office in January.

Millions of people protested SOPA in online forums, in emails, on Twitter, on Facebook -- and in old-fashioned telephone calls. They emerged with the power of a special interest group, like the AARP or the NRA. It was a grassroots "Netizen" uprising.

On one level, SOPA was a fight between industry groups: the big music and movie content providers vs. the tech industry. But for those who protested on Reddit and elsewhere, it was about something more fundamental: Internet freedom.

In pursuit of copyright protections, SOPA would have given courts new ability to block offending websites and monitor traffic. This did not sit well with many already simmering over draconian court awards against students for copyright infringement.

What did SOPA accomplish? It told lawmakers that there is a very large group of people who don't want the Internet burdened with regulation designed to protect certain industries. They don't want any law that increases the risk of censorship and government intrusion. That might be the basis of SOPA blowback.

No doubt, industry groups will work to get bills introduced that have some limited SOPA-type provisions. But in the new Congress, lawmakers from both parties may have more interest in gaining the favor of the young and engaged protestors.

SOPA blowback legislation may take the shape of new laws that curb million-dollar-plus damage awards for infringement, or something like the Pandora-backed Internet Radio Fairness Act that attempts to set royalty terms for Internet broadcasters. This particular bill raised too many questions to get action this year, but it has bipartisan sponsors and will likely be back, unlike SOPA.

From interviews, some on background and some on the record, here's the outlook for the next Congress's IT-related legislative agenda.

A White House order could force Congress's hand on cybersecurity

In October, U.S. Defense Secretary Leon Panetta warned that a cyberattack "could be as destructive as the 9/11 terrorist attacks and could "virtually paralyze the nation."

Panetta's warning came as Congress was considering cybersecurity legislation. The House was considering the Cyber Intelligence Sharing and Protection Act (H.R. 3523), better known as CISPA, and the Senate had the Cyber Security Act of 2012 (S. 3414). But these efforts ran into the same problem that has hobbled every attempt at enacting security legislation since 9/11: Industry groups don't want new regulations or liabilities.

Neither bill made it into law, but that's hardly the end of the story.

President Obama is expected to sign, perhaps in two months, an executive order to force critical infrastructure providers to meet some basic cybersecurity requirements.

Greg Nojeim, the senior counsel at the Center for Democracy and Technology, said one issue is whether government regulations would hold a business liable if it fails to sufficiently thwart an attack. One of the bills sought to limit that liability, something an executive order won't be able to do, he said.

"Some believe after the executive order is issued, it might clear the way for legislation because it might be an incentive to get liability protection," said Nojeim.

But it's unclear whether any legislation would actually improve cybersecurity.

Alan Paller, director of research at the SANS Institute, helped to draft a Senate bill on cybersecurity, and he said the Senate staff made so many compromises in the legislation that they completed gutted it.

"None of the legislation either sent forward or in draft will have any positive effect on our national security, whether passed or not," said Paller. Instead, what's needed is an effort to drive federal cybersecurity "to very high levels so that the government can lead by example," he added.

Tech immigration remains difficult

The House this year approved a Republican-backed bill called the STEM Jobs Act (H.R. 6429) that provided up to 55,000 green cards for people from other countries who hold advanced degrees in science, technology engineering or math (the so-called STEM fields).

The White House opposed the bill because it eliminated the diversity lottery, which was set up to distribute green cards equally among people from countries with low rates of immigration. The White House also wants a STEM visa attached to comprehensive reform.

Will anything change in the next year?

Comprehensive reform, for its supporters, means a pathway to legal status for approximately 11 million undocumented immigrants in the U.S. That is the stumbling block to any action on tech-related immigration. There is a view that the lopsided Hispanic support for Democrats in November's election might spur Republicans to support an immigration remedy for undocumented immigrants.

It is also possible that the Senate could take up the undocumented issue separately, and forgo a comprehensive approach. There is some discussion among lawmakers about trying that approach, but getting any bill approved remains a long shot.

Internet sales tax collection debate renewed

There was a push in the lame duck session to attach Internet sales tax obligation measure to a defense authorization bill. The effort was blocked in the Senate, but this issue will return next year.

"Supporters of the measure are already promising to push for passage in 2013, and with the unholy alliance of tax collectors, state legislators, big box retailers and Amazon.com behind them, I am sure they will continue to be extremely aggressive," said Steve DelBianco, executive director of NetChoice, an industry group that believes imposing sales tax collection obligations will hurt online retailers.

Proponents may have the momentum. Massachusetts just announced that Amazon will begin collecting sales tax, starting next November. The online retailer now collects sales tax in eight states, and as it expands its tax collections, supporters of broad-based collections are feeling more confident.

The main bill, the Marketplace Fairness Act (S. 1832) requires online merchants to collect sales taxes in states where they do not have an obligation to do so today. Current law only requires online retailers to collect sales tax in states where they have a physical presence.

Anti-offshoring bill unlikely to return

Anti-offshoring bills remain a staple in state houses, and sometimes in Congress. The leading federal measure was the U.S. Call Center and Consumer Protection Act (H.R. 3596). A Senate companion bill is S. 3402.

That bill would have required call center workers to disclose their location if a customer asked them where they were calling from. It also included a provision that would have required companies to provide a 120-day notice when setting up a call center overseas. Companies that relocated call centers from the United States to another country would become ineligible for federal loans and guarantees.

The Democratic bill got 137 co-sponsors in the House, including some Republicans, but it quickly stalled. The Senate version, introduced by Robert Casey (D-Pa.), had four co-sponsors, all Democrats, and one independent, Bernard Sanders of Vermont.

The Democrats won't be able to move this bill forward in The House.

Patrick Thibodeau covers cloud computing and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov, or subscribe to Patrick's RSS feed. His email address is pthibodeau@computerworld.com.

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