For the Open Internet, the Best Defense is a Strong Offense

Written by Mark Stanley

Despite recent setbacks for the Internet community in Washington, the push for legislation to improve privacy and innovation is not in vain.

Recently, there’s been a string of legislative disappointments for the Internet industry and advocates in DC. If you’re in the business of getting bills passed, DC can break your heart. As JFK once said, Washington is a city of northern charm and southern efficiency – sometimes it seems not a lot gets done.

For those from the tech world who live by the mantras ‘done is better than perfect’ and ‘move fast and break things,’ the drawn out deliberations and compromises can be discouraging. Folks who work in tech and startups are often content to remain outside the Beltway, where they are free to create and get things done without the hurdles encountered in DC.

The fate of two bills in the last few weeks has been the source of particular frustration.

The first was the USA Freedom Act, the bill to end bulk collection of data by the National Security Agency. Civil libertarians and giants from the Internet industry teamed up to endorse the bill, but despite broad support, it seemed like a long shot. Then the unexpected happened: Representative Goodlatte, Chair of the House Judiciary Committee, swiftly passed the bill out of his committee. In a matter of days, Chairman Rogers, to the surprise of anyone familiar with his track record on privacy, passed the bill out of the Intelligence Committee.

However, just before the bill was taken to a floor vote, several amendments were added – one in particular appeared to allow for mass collection of data, if not for the entire country, then for very large sets of people. The bill passed, amendments intact. Much of the tech community, stunned by the rapid turn of events, in which a good bill had suddenly been severely weakened, pulled its support. Progress was made, but it wasn’t what advocates and companies hoped for.

The second bill was patent reform. The purpose of the bill was to rein in patent trolls – companies that procure huge numbers of patents and then bring infringement suits against other companies and innovators, all to make an easy buck. In late 2013, the House passed a reform bill, and hopes were high the Senate would follow suit. But Senator Leahy, Chairman of the Judiciary Committee, was forced to deal reform a fatal blow, pulling the bill from his committee’s agenda because of the inability of lawmakers to agree on a path forward.

Despite the less-than-rosy picture painted by the tale of these two bills, all is not lost. In the case of the USA Freedom Act, there is still an opportunity for a stronger bill in the Senate. Ultimately, a compromise is still possible that could substantially improve the status quo. Although the path to reform has been protracted, the reality is that the political system, and especially Congress, isn’t necessarily built for quick and complete victories.

The second reason to be sanguine is that even when change is incremental or doesn’t pan out, the best defense is still a strong offense.

Taking the long view, we can’t get too discouraged when a bill doesn’t pass or we don’t get everything we want. In the short term, the defeat may sting. But if we weren’t pushing forward, our opponents would be pushing back with even greater force.

If there were not groups and companies pushing for surveillance reform, pushing for laws to bolster innovation, and pushing for free expression rights, then special interests long ago would have diminished privacy far beyond its current state, built insurmountable barriers to entry for startups, and censored the Internet beyond recognition.

So we must keep fighting and be mindful that, even during times when hard-won progress seems incremental at best, if we weren’t pushing for legislation to defend and improve the open Internet, opponents would be passing legislation to dismantle it.

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