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New Congress Faces Technology, Privacy Issues

By Martin H. Bosworth
ConsumerAffairs.com

November 9, 2006

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It's all over but the shouting, as the confirmation of Jim Webb as Virginia's newest Senator solidifies Democratic control of both houses of Congress for the first time in 12 years.

The new class has a very heavy workload ahead of it, with everything from the Iraq war to the trillion-dollar deficit jostling for time on the agenda.

Not least of these will be issues ranging from protection against stealing your phone records, to better protections from fraud and identity theft, to ensuring everyone has equal Internet access.

What are some of the big technology and privacy issues facing the 110th Congress, and how might they respond?

Domestic Surveillance

One of the biggest controversies of the previous Congress and the Bush presidency was the revelation of the massive domestic phone wiretapping program that was implemented without Constitutional authority or oversight by the NSA.

Attempts by then-Senate Judiciary Committee chair Arlen Specter (R-PA) to bring the program in line with existing laws, such as the Foreign Intelligence Surveillance Act (FISA), were largely considered empty gestures that appeased the Bush administration's wishes.

The House of Representatives had succeeded in passing H.R. 5285, a bill designed to overhaul the wiretapping program to bring it in line with FISA, but the Senate failed to pass a companion bill before the Congress adjourned for the election season.

The possibility exists that the Congress may try to push wiretapping legislation forward in the "lame duck" session after the elections, but civil liberties advocates and Congressional analysts think the new Democratic Congress will be much more skeptical of supporting surveillance programs without more extensive oversight and investigation.

Sen. Mike DeWine (R-OH), who sponsored legislation designed to exclude the NSA program from FISA, was thoroughly defeated in the election by Democrat Sherrod Brown. DeWine had said that "the vast majority of Americans believe these calls need to be listened to," and that the country needed to "move" beyond issues of Congressional oversight.

Pretexting And Privacy

The issue of "pretexting" -- posing as an individual in order to buy their phone records, often for the purpose of selling them to third parties -- hit the national stage early in the year when blogger John Aravosis bought the cell phone records of retired Army general and former Presidential candidate Wesley Clark.

The outcry prompted a flurry of lawsuits from chagrined telecom companies and state Attorneys General, and calls for federal legislation to criminalize pretexting.

A bill that made pretexting a criminal offense passed the House by a whopping 409-0 margin, but companion legislation never made it out of the Senate, and the House bill disappeared from the legislative calendar.

It was later revealed that local and national law enforcement agencies, including the FBI and the Department of Homeland Security, often employed pretexting to get access to suspects' telephone records.

The pretexting problem returned to the national scene with the revelation that former Hewlett-Packard chairwoman Patricia Dunn had authorized private investigators to use pretexting in order to track down the source of leaks of confidential company information. The scandal led to many resignations from H-P's top echelons, including Dunn herself, and renewed calls for legislation to criminalize pretexting.

But bills pushed by Republicans Ted Stevens (R-AK) and Joe Barton (R-TX) stalled over Stevens' desire to preempt state laws mandating phone companies to take care of customer records. Opponents said that the preemption would prevent state investigations into the NSA wiretapping program.

Given the shift in Congress, observers predict a much greater chance of anti-pretexting laws coming up for debate, including more definitive answers as to whether or not the practice is criminal, and whether federal legislation is required.

Sen. Hillary Rodham Clinton (D-NY) included anti-pretexting provisions in her "Privacy Bill of Rights," a bill that also covers stronger safeguards for medical privacy, implements "opt-in" provisions to prevent the sharing of personal information without consumer consent, and the ability to institute "freezes" on credit reports to prevent identity theft.

Clinton has also introduced measures designed to prevent theft of childrens' identities by fraudsters. She added the new provisions to the "Debit and Check Card Consumer Protection Act of 2006," which extends the anti-fraud and liability protections for credit cards to debit and ATM cards as well.

The Democratic majority in Congress will give Clinton a much stronger support base to pass the two measures in the new session.

Identity Theft

Not everything looks so rosy on the identity theft front.

Rep. Steve LaTourette (R-OH), sponsor of what critics called the "worst data bill ever," retained his seat in Congress, though he will lose his position as chair of the Transportation Subcommittee.

LaTourette's bill was heavily criticized for favoring industry interests at the expense of consumers, and for blocking state laws that enable "identity freezes." The anti-identity freeze provision was later removed from the bill, which has stalled in the House.

Net Neutrality

Supporters of "net neutrality," the principle that all content on the Internet should be accessed equally and without having to pay service providers extra money, may be the biggest winners in the Congressional turnover.

Rep. John Dingell (D-MI) and Ed Markey (D-MA), both strong supporters of net neutrality, will be taking over chairmanships of committees that affect telecom policy in the new Congress.

Dingell will succeed Joe Barton as House Commerce Committee chair, while Markey is the favorite to head up the Telecommunications and Internet subcommittee.

Markey had tried to insert amendments supporting net neutrality into Barton's rewrite of the Telecommunications Act, but was defeated when the bill was being voted on in the Commerce Committee.

Net neutrality's most formidable ally in the House may be Speaker-to-be Nancy Pelosi. Pelosi agreed to be a co-sponsor of Markey's amendment and defended the principles of free Internet access on the House floor.

Telecom Mergers

Dingell has already signaled that he is going to take on major telecom issues such as the looming merger of BellSouth with AT&T. Dingell said at a press conference that he hoped the FCC would wait until the new Congress convenes in January, to allow him to take a closer look at the merger.

The FCC has already stalled on the BellSouth/AT&T merger, failing to vote on the issue on two occasions. The Democratic commissioners, Michael Copps and Jonathan Adelstein, asked for more time to examine the merger to determine if it would adversely harm consumers and reduce choice in the marketplace.

Across the Capitol in the Senate, new Senators Jim Webb (D-VA), Sherrod Brown (D-OH), and Bernie Sanders (I-VT) all have publicly stated support for net neutrality.

Ted Stevens, in his role as Senate Commerce Committee chair, had tried to push his own version of the Telecommunications Act rewrite for a quick vote before the election season, but failed to round up the 60 votes necessary for majority support.

Cramming

There may even be hope that the new Democratic Congress may finally address the issue of "cramming," the practice of billing phone callers with unexplained charges. Many states have gone after companies that practice cramming, but lack of federal action on the issue has left consumers frustrated.

The problem is compounded by the fact that "cramming" was enabled by the Telecommunications Act of 1996—the very legislation that is stalled in both the House and Senate, awaiting revision.

It's still too early to tell what the new Congress will be like in action, but it's clear that the landscape has shifted dramatically, and many issues of privacy, consumers' digital rights, and technology rights have new life in them.

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