What will a Democratic Congress mean for digital freedom?

Electronic blue
By MIKE MILIARD  |  November 14, 2006

Sure, you’re relieved. The Democrats’ sudden ascension to power in both houses of Congress for the first time since 1994 is undeniably good news for a host of progressive causes. But while the future might look a little brighter for issues like the environment and economic fairness, threats to our digital and online freedoms remain, even with the good guys in charge. “On some issues the Democrats are very good for online freedom, on some issues they’re not,” says Derek Slater, a former student fellow at Harvard’s Berkman Center for Internet and Society and an activist with the Electronic Frontier Foundation (EFF).

As we wait for the new Democratic majorities to take their seats on Capitol Hill, a host of hot-button topics sitting before Congress, from digital-media restrictions and “net neutrality” to e-voting and electronic surveillance, remain in limbo. And big gains by the Dems don’t necessarily mean we can breathe easier when it comes to our online freedoms. “Everything is on the table,” says Slater, “and nothing is certain.”

Take intellectual-property issues. “There are many high-ranking Democrats who side with Hollywood and the record industry,” Slater says. The “Platform Equality and Remedies for Rights Holders in Music (PERFORM) Act,” co-sponsored by Democratic California Senator Diane Feinstein, would stifle satellite radio and compel Webcasters to encode their content with restrictive digital-rights-management software. “All sorts of mandatory digital restrictions for video and audio will be back in play,” says Slater. Hollywood and the Recording Industry Association of America (RIAA) have wanted them for years, “and there is no sign that they are giving up.”

The Communications, Consumer’s Choice, and Broadband Deployment Act, the sweeping telecom bill introduced earlier this year by Republican senator Ted Stevens of Alaska — who infamously referred to the Internet as “a series of tubes” — is another one to watch. That bill mandates broadcast-flag technology (coded bits included in the data stream of digital content indicating whether or not it can be recorded without restriction) and contains a host of other threats to fair use and technological innovation. As currently written, it would also privilege giant providers like AT&T and Verizon, by allowing them to offer faster service to sites and applications of their choosing. The most recent action on the bill, in June, saw several senators (primarily Democratsand moderate Republicans, including Maine’s Olympia Snowe) trying to add language that would safeguard “network neutrality” and prevent such corporate control. But their amendment died in committee with a tie vote. It’s unclear where the debate will go from here, or whether the new majority will bring net neutrality back into the equation. “There’s a lot to shake out,” says Slater, pointing out that issues like these aren’t typically addressed in candidates’ stump speeches. “It’s going to take some time to feel out who’s where.”

Even if an influx of Dems means more allies, Slater warns of dangerous waters between now and January, when the new Congress convenes — especially when it comes to the National Security Agency’s warrentless surveillance program. “The president has said that one of his top priorities for the lame-duck session was to pass some sort of legislation on that. That’s gonna be a tough fight.”

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