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Summary:

The impending SOPA and PIPA bills have the Internet in a tizzy, but Congress has a lot more to think about than just intellectual property. The issues at play in the SOPA debate have broad effects that span everything from the digital divide to international commerce.

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The impending Stop Online Piracy Act and Protect IP Act have the Internet in a tizzy, but Congress has a lot more to think about on the technology front than just intellectual property. Even digging below the surface of the SOPA debate, you see that the issues at play — such as defining Internet borders and squelching innovation on the web — have broad effects that span everything from the digital divide to international commerce.

So, now that the rushed and ill-conceived SOPA and PIPA are essentially dead as currently written thanks to President Obama’s opposition, Congress has an opportunity to rethink and recast the bills in light of the myriad complaints cited by their opponents. While it’s at it, Congress might want consider other methods for ensuring the United States keeps its place atop the burgeoning Internet economy. Based in part on what I heard during hours of policy panels at last week’s CES event, here are five questions Congress needs to answer in 2012.

1. Internet or Internets?

On the one hand, Congress embraces the idea of a single, open Internet even while discussing the topic of online privacy. During a panel on congressional tech policy, Rep. Cliff Stearns (R-Fla.) said that online privacy legislation will happen, but Congress will not take a broad European Union-style approach to the issue. As the Entertainment Software Association’s Christian Genetski noted in a subsequent panel on privacy, and as we’ve explained before, overburdensome data-protection laws can cause problems for international commerce and stifle innovation in arguably America’s most-promising industry.

On the other hand, supporters of the House’s SOPA and the Senate’s PIPA legislation might as well be encouraging a collection of separate, but interconnected, national networks. Jayme White and Ryan Clough, staffers for Sen. Ron Wyden (D-Ore.) and Rep. Zoe Lofgren (D-Calif.), respectively, noted on a panel dedicated to combating piracy that allowing U.S. companies and courts to unilaterally cripple foreign web sites is not so different from how China censors content or even imposes restrictions on foreign imports.

2. Who does SOPA really target?

Still, nobody denies that trying to enforce intellectual property rights against foreign infringers is a noble goal. But one big problem with SOPA and PIPA is that they also have the potential to come down hard on U.S. companies that even appear to run afoul of their harsh, possibly unconstitutional penalties. Howard University professor Lateef Mtima said “this is being framed almost like an old Western,” because while there will be a showdown at noon between rightsholders and pirates, there will also be a lot of collateral damage.  Those could be web startups, small businesses or, as Casey Rae-Hunter of the Future of Music Coalition pointed out, online storage services that independent artists — copyright holders themselves — depend on for storing, sharing and collaborating on music.

Rep. Darrell Issa (R-Calif.) was adamant that SOPA’s and PIPA’s reliance on U.S. courts contradicts the acts’ alleged targets. He argues, including in his alternative OPEN Act, for reliance on the International Trade Commission, the body typically charged with handling IP concerns that cross international boundaries. Not only is the ITC experienced in shutting down the cashflow for foreign entities not bound by U.S. law, he argued, but such an approach leaves rightsholders with their existing avenues for addressing IP concerns within the U.S. legal system.

3. Privacy or security?

It strikes me as very possible that people conflate online data privacy (i.e., how sites use and display personal data) with online data security (i.e., how sites protect data from cybercriminals), especially in the wake of mega-breaches like the one that hit Zappos earlier this week . While both important issues, the approaches to solving them are very different.

If security is the biggest concern, cracking down too hard on privacy might prove to be a bad idea. It could be detrimental to innovation, as well as to the ad-driven business models that keep so many popular services free to use. In the wake of the FTC’s intrusive, 20-year legal settlements with Facebook and Google, Genetski suggested it might not be such a bad idea to have a lawyer present in product meetings. However, in a web world that’s both fast-moving and full of largely hypothetical harms, I’m not so sure that’s a good thing.

But if privacy really is our concern, Harvard’s Susan Crawford suggested an approach near and dear to my heart (something on which I recently elaborated in a GigaOM Pro report on data (sub req’d)). Perhaps the best method is to enable a marketplace whereby companies can compete on privacy, thus letting the free market, not Congress, decide what’s acceptable and what’s not. We might find consumers are open to a lot more than many assume they are.

4. Can we auction off spectrum already?

The only reason we’re talking about any of these issues is because the web has enabled a world of almost perpetual connectivity where we can access content and share information to our hearts’ content. But that’s a big “almost,” as one CES audience member noted to the panel of Republican lawmakers. Inside the Las Vegas Convention Center, he explained, mobile data connections were extremely bogged down, leaving many attendees unable to access email or the web.

There is a goldmine of wireless spectrum freed up from when television made the switch from analog to digital, and today’s 4G devices could really benefit from it. Running up to this year’s election, there’s a lot of talk around boosting the economy and growing jobs. More access to wireless broadband means more apps, more devices and more productivity, all of which lead to more tax revenue and more jobs. So maybe Congress finally needs to figure out how it will make that currently unused spectrum available and force operators to use the excess spectrum they already have available.

5. How can we connect rural America?

Rep. John Shimkus (R-Ill.) noted on multiple occasions during the CES congressional panel that despite all the talk about 4G and web apps in the country’s metropolitan areas, the situation isn’t the same in America’s rural areas. Many rural Americans aren’t as wired (although not necessarily by choice) or as tech-savvy, nor are they typically as affluent. The web is an increasingly important platform for social interaction and information, and while access might not be a fundamental right, not having access is certainly a major hindrance.

I can speak from experience having just spent nearly a week in not-too-rural Wisconsin with no 4G access and, in some places, no DSL or cable broadband. Shimkus cited the potential for legislation such as SOPA and proposed privacy legislation to raise the price of web applications that might now be free, which would in turn cut off access for many people, assuming they had reliable Internet connections in the first place. As technology legislation makes its way through the process, there’s a real possibility for rural America’s concerns to get overshadowed by those of the myriad corporate interests involved, and that would be a big mistake.

Feature image courtesy of Flickr user ctj71081; private-property image courtesy of Flickr user PaulHorner.

  1. Can we save some of that spectrum for unlicensed use, please. Or do we need to start crowdfunding for a bid?

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