The Digital Give And Take
January 03, 2007
Derek Slater is an activist with the Electronic Frontier Foundation (EFF ), a leading organization defending digital rights in the courts and Congress.
Many progressives are partying like it's 1992 in the wake of the November election. But when it comes to technology and civil liberties policy, the newly elected Congress presents both new opportunities and new challenges. The truth is, neither Democrats nor Republicans are universally good or bad across all digital rights issues.
The power shift in Congress is likely to generate greater scrutiny of government surveillance. Democrats have already indicated that they will hold hearings regarding the massive and illegal National Security Agency spying program. In a speech last week, incoming Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., deemed investigating the program a top priority and reportedly threatened to use subpoenas to get information from the Bush administration.
Such oversight is long overdue. It has now been over a year since the press first reported on this unprecedented violation of the Fourth Amendment and the legal safeguards set up by Congress. Three courts have already rejected the government's bogus arguments shielding the program from judicial scrutiny, including Judge Vaughn Walker in the EFF's case against AT&T for its role in the spying. Yet Congress has so far failed to thoroughly investigate the details of this still-shadowy program, let alone pass legislation to stop it. Instead, it spent significant energy last year considering proposals that could have rubberstamped the spying and let the government off the hook for breaking the law.
Fortunately, these bills stalled, but holding the line isn't enough. Investigative hearings could be an important step towards reining in this illegal activity and protecting the millions of ordinary Americans whose privacy is still being violated.
The newly elected Congress' effects may be more mixed when it comes to digital copyright and protecting the public's interests. Hollywood and major record labels have long sought legislation that would expand copyright holders' control over innovation and threaten your legitimate use of great gadgets like TiVos and iPods. A broad coalition of groups including EFF helped beat back such power grabs last year, but the entertainment industry will be back again with some of its Hill supporters in stronger positions.
Some Democrats are among the entertainment industry's strongest allies. For instance, incoming House Internet and Intellectual Property Subcommittee Chairman Howard Berman, D-Calif., hails from the Los Angeles area and is a well-known defender of large entertainment companies' interests. In 2002, he authored a bill that would have allowed copyright holders to break the law in their efforts to stop peer-to-peer file sharing. Senator Dianne Feinstein, D-Calif., introduced a bill last year that would have crippled digital radio and satellite devices, precluding anyone from creating a TiVo-for-radio without draconian recording restrictions.
On the other hand, Rep. Rick Boucher, D-Va., has championed the public's interest in digital copyright issues and will likely re-introduce a proposal that would help consumers exercise their rights to make legitimate use of copyrighted media. The record labels also lost a key ally in outgoing Senate Majority Leader Bill Frist, R-Tenn. Recording Industry Association of America Chairman Mitch Bainwol was formerly chief of staff for Senator Frist, who co-introduced Senator Feinstein's digital radio restrictions bill.
Finally, the election may bring broader, bipartisan support for electronic voting reform, but not because of who was or wasn't elected. When voting systems fail to make sure every vote is accurately counted, that's bad for our whole democracy, not just a particular candidate or political party.
Congress failed to pass electronic voting reform in 2006, and voters paid the price at the polls. Most significantly, millions of voters nationwide cast their votes on e-voting machines that lack paper trails. Voters thus could not verify that their votes were accurately recorded, and election officials were not able to conduct full and thorough recounts.
E-voting problems are especially tragic given that these machines were used in some of the nation's closest races. For instance, in Sarasota County, Florida, the congressional race was decided by 363 votes, yet over 18,000 ballots cast on the county's e-voting machines registered no vote in the race, an exceptional anomaly. A coalition of advocacy groups including EFF are representing Democratic and Republican voters in a lawsuit that seeks a re-vote.
This problem reaches beyond any one county or state. Thankfully, Congress can help provide a nationwide solution by passing Representative Rush Holt's, D-N.J., Voter Confidence and Increased Accessibility Act this year. Holt's bill includes a requirement of a paper audit trail for all electronic voting machines, random audits, and public availability of all code used in elections. The bill gained the support of 220 bipartisan co-sponsors in the last Congress and will be re-introduced at the start of the new year.