Post Election, Tech Issues Await Congress

UPDATED: Major technology policy issues were left on the backburner of Congress in the run up to Tuesday’s hotly contested general elections.

But with the winners in the U.S. House and Senate races (mostly) decided, including the re-election of President Bush — now that his Democratic challenger Sen. John Kerry reportedly conceded the race — will a technology agenda heat up again?

A roundup of some of the top issues that await the upcoming lame duck session and the next Congress:

Voice Over IP

Although technology failed to raise a note in the elections, several
critical IT issues are awaiting immediate attention in Washington and none
more so than the regulatory status of Voice over IP .

The Federal Communications Commission (FCC) plans to rule
Nov. 9 on whether Internet telephony is an interstate service and exempt
from state and local regulation and tariffs.

The FCC is currently reviewing the regulatory status of VoIP. The agency is
anxious to keep the issue out of the courts, but, in the absence of
congressional action, the FCC is racing against the docket clock. On Nov. 17, oral
arguments are expected to get under way in Minnesota’s appeal of a decision
ruling the Internet telephone service offered by Vonage an interstate
information service and not subject to Minnesota laws regarding traditional
telephone carriers.

In its year-long VoIP review process, the FCC has already exempted Jeff
Pulver’s Free World Dialup (FWP) from state regulations because the free
calls customers make are routed entirely over the Internet and never
interconnect with the public switched telephone network. With a broadband
connection, FWD members talk with each other computer-to-computer.

In a preliminary ruling issued in August, the FCC also said Internet
telephony should be subject to traditional wiretap laws. The preliminary
decision will force VoIP providers to comply with the same law enforcement
rules as telephone carriers.

The FCC is also considering VoIP carrier obligations in regards to emergency
911 calling services and any contributions the VoIP industry should make to
the Universal Service Fund.

Taxing the Connections?

In the lame duck Congress returning to Washington on Nov. 16, legislation is
still pending on reviving the expired Internet access tax moratorium and
spyware.

The House and the Senate both agree the moratorium that expired a year ago
exempting Internet connections from taxes should be extended. They sharply
disagree over the duration of the next moratorium and grandfather exclusions
for states already taxing Internet access.

In September of 2003, before the moratorium expired, the House voted to permanently
extend the ban on connection taxes. The bill also requires nine states that
were grandfathered in the original 1998 legislation to repeal existing
Internet access taxes on dial-up or DSL high-speed connections.

A similar proposal stalled in the Senate. In April, the Senate voted 93-3 to
extend the moratorium for another four years. The bill also keeps the
grandfather provisions of the original moratorium.

The solidarity of the final Senate vote masked the deep divisions
criss-crossing through party lines over Internet access taxation. Throughout
the three-day floor debate, more than a third of the Senate consistently
voted to shorten the duration of a new moratorium and to keep the access
definitions much narrower in scope.

The Congressional Budget Office (CBO) estimates that repealing the
grandfather clause will result in revenue losses for the states totaling
between $80 million and $120 million annually.

Dueling Anti-Spyware Legislation

The House and the Senate disagree over the need for national
anti-spyware legislation. Last month, the House passed two
bills in three days aimed at thwarting so-called driveby downloads.

The Internet Spyware Prevention Act of 2004 (H.R. 4661), which passed on a
415-0 vote, makes it a crime to intentionally access a computer without
authorization or to intentionally exceed authorized access. If the
unauthorized intrusion is to further another federal crime such as secretly
accessing personal data, the penalty is up to five years in prison.

Deliberately injuring or defrauding a person or damaging a computer through
the unauthorized installation of spyware carries prison terms of up to two
years. The legislation also authorizes $10 million for the Department of
Justice to combat spyware and phishing scams, although the
bill does not specifically make phishing a crime.

Another bill, the Spy Act (H.R. 2929), prohibits unfair or deceptive practices related to
spyware. The legislation requires an opt-in notice and consent form for
legal software that collects personally identifiable information from
consumers. The penalties in H.R. 2929 are limited to civil fines of up to $3
million.