First Tech Policy Survey: What Do YOU Want to Know?
The 2016 campaigns have offered plenty of theatrics, but not enough substantive discussion on some of the most important issues facing the tech sector. If you take one thing away from the recent presidential debates, it should be this: tech policy hardly gets the attention it deserves. For too long, the conversation in Washington has been disconnected from the issues that matter to innovators and the tech economy.
That needs to change.
A high-tech, rapidly changing economy needs regulatory certainty to realize its full potential. But our government is regularly behind the curve on understanding technology.
We took a first crack at questions we should ask elected officials, regulators, and presidential candidates. But before we send them a formal survey, we want to know what you think. Let us know what questions we missed — or how you might tweak any of them.
/s/ Lincoln Labs & TechFreedom
Up to 65,000 highly skilled foreign workers obtain employment each year in the U.S via an H1-B visa. High-tech companies see these visas as critical for their businesses.
1. Should the number of H1-B visas be increased, if the overall immigration cap is kept the same?
2. Do you support the Start-up Visa Act to provide a visa for foreign entrepreneurs who want to start their business in the U.S.?
A significant part of the expense of broadband deployment, especially for new networks like Google Fiber, lies in getting access to publicly owned rights of way, such to install fiber under streets or on poles built on public land. A “Dig Once” approach means multiple broadband providers could install fiber in a single conduit, leased from the government. This could make it significantly cheaper to deploy and upgrade broadband networks. This would avoid multiple disruptions to road and highway traffic — yet adds just 1% to the cost of digging up roads.
3. When federal money is used to dig up a highway or road, should the Federal government install “Dig Once” conduits?
The quality of mobile broadband depends largely on the amount of radio spectrum available. Most of the useful spectrum is licensed to government agencies, which currently have no budgetary incentive to use it efficiently or open it for commercial use.
4. Should Government agencies have spectrum as a line item on their budget so the value of their spectrum can be weighed?
5. Should agencies be compensated for more efficiently using, divesting, or sharing their spectrum holdings?
Since 1996, private providers have invested $1.4+ trillion in broadband, including wireless. In December 2013, 94% of census tracts (roughly, neighborhoods) had at least two providers offering at least 10 Mbps service. (Even on Google Fiber, the average Netflix HD video stream uses less than 4 Mbps.) But only 65% had three providers at 10 Mbps.
6. Are there are enough viable broadband services in your area to meet your broadband needs and provide competition?
The Federal Communications Commission recently “reclassified” broadband Internet service providers as common carriers under “Title II” of the 1934 Communications Act. The regulations go beyond the FCC’s previous “net neutrality” rules. The FCC is now in litigation over reclassification, and major questions about the effects of Title II remain unresolved.
7. Should the FCC regulate broadband companies under Title II?
According to a recent study, the U.S. Patent and Trademark Office (USPTO) eventually grants over 90% of patent applications — including graphics of a janitor’s method of cleaning a building, the idea of a hyperlink, rounded rectangles, one-click checkout, and exercising a cat with a laser pointer.
8. Do you support reforms of the USPTO to improve the quality of patents granted?
9. Should statutory definitions of “novel, nonobvious, and useful” in Section 101, 102, and 103, be clarified to address the definition of a frivolous patent?
The Constitution authorizes Congress to grant copyrights for “Limited Times” for the purpose of “promot[ing] the Progress of Science and useful Arts.” The 1790 Copyright Act provided an initial copyright term of 14 years (with a second 14-year term available if the author were still alive). Today, most copyrights last for the life of the author plus 70 years, or 120 years after publication.
10. What should be the maximum total copyright term?
Under American law, those who commit some harm to others are generally responsible only for actual damages. But in copyright law, courts may award statutory damages of up to $150,000 per infringement. This also applies to manufacturers of dual-use technologies. Thus, when Sony introduced the Betamax home video recorder in the 1970s, it faced potential liability up to $100+ trillion (in 2015 dollars). Defenders of statutory damages argue that they are necessary to provide adequate deterrence against piracy, given the difficulty of proving real damages in each case.
11. Should copyright infringement damages be significantly reduced for secondary and vicarious infringement (e.g., dual-use technologies)?
“Circumvention” of digital locks is prohibited by Section 1201 of the 1996 DMCA to allow use of these locks on DVDs and Blu-rays to prevent piracy. Today, decades later, Section 1201 has come to ban dozens of non-copyright related technologies. For example, in 2013 an online petition convinced Congress to enact legislation to legalize phone unlocking. New legislation, the Unlocking Technology Act of 2015 (H.R. 1587), was introduced to legalize non-infringing technologies such as jailbreaking and iPad unlocking.
12. Do you support reforms to the DMCA Section 1201, such as The Unlocking Technology Act of 2015 (H.R. 1587), to protect innovators and consumers in using technology not related to copyright infringement?
Low-Risk Medical Tech
Internet apps are generally regulated by the Federal Trade Commission to prevent unfair and deceptive practices. The FDA wants to regulate health-related apps as medical devices. App makers argue that that heavier FDA regulation designed for higher-risk medical devices will discourage innovation.
13. Should personal health apps be regulated like medical devices?
In 2013, the FDA ordered 23andMe to cease selling its $99 direct-to-consumer-DNA-analysis kit (not their genealogical service). The agency claimed that the results might cause some customers to undergo unnecessary procedures, such as preventative treatment in response to information that they might have an elevated risk of breast cancer.
14. Should Congress legalize direct-to-consumer DNA analysis, overriding the FDA’s ban?
Sharing services, like Uber, allow individuals to work on their own schedule and only get paid for the time that they work or provide a service. Sharing services argue these workers are “independent contractors.” Some labor advocates claim that sharing economy services exploit their workers by not classifying them as employees. Classifying workers as employees would require many sharing economy jobs to provide a host of benefits, like health insurance — but may also break the business model of many sharing services.
15. Should sharing economy employees like Uber drivers continue to be classified as independent contractors?
By eliminating driver error, autonomous vehicles could reduce America’s annual ~32,000 motor vehicle deaths. Yet even if accidents become less likely, current tort laws may hold autonomous vehicle manufacturers responsible. This legal liability may slow autonomous vehicle development, thus causing deaths that could have been prevented by deployment of autonomous vehicles.
16. Should tort liability laws be changed to foster autonomous car development?
Tesla and SpaceX owner Elon Musk has proposed building a Hyperloop, which could carry passengers at speeds up to 760 mph in reduced-pressure tubes built between major cities.
17. Do you support legislation to revise regulations to allow Hyperloop to build privately financed projects?
The FAA has recently proposed rules that would sharply limit “commercial” (very broadly defined) drone operation.
18. Should commercial drones be allowed to operate in cities?
Completely digital currencies like Bitcoin could make financial services cheaper and more widely available around the world, and allow more private financial transactions. Some in law enforcement worry that criminals will take advantage of digital currencies.
19. Should Americans be able to use digital currency to pay a private company that wants to accept digital payment?
Privacy & Surveillance
In 2013, NSA contractor Edward Snowden leaked documents revealing that U.S. intelligence agencies were conducting massive, dragnet surveillance of both Americans and foreigners. Some argue that these leaks harmed U.S. national security . Others have used these revelations to build support for reforming U.S. surveillance and privacy laws. Many insist this highlights the need for a technological solution: better encryption systems that are less vulnerable to hacking.
20. Should Americans be able to encrypt their Internet communications so that not even government can read them?
The Fourth Amendment generally requires that, before obtaining private communications, a judge must issue a warrant, which requires that probable cause to believe a crime was committed. The Electronic Communications Privacy Act was passed in 1986 to clarify Fourth Amendment protections as remote computer processing of data started taking off. Unfortunately, this law no longer offers the Fourth Amendment protections that would apply to files stored on your own computer. Nearly 300 Congressmen and 25 Senators have co-sponsored ECPA reform, but it has not come up for a vote in either Chamber because civil regulatory agencies insist that they should be able to compel cloud storage companies (e.g. Google Apps) to produce stored communications of an individual or company that is the target of an investigation without a warrant.
21. Should law enforcement have to get a warrant before accessing email and other private content stored in the “cloud”?
22. Should civil regulatory agencies be exempt from the warrant requirement?
Many argue that the Fourth Amendment should protect location as well as content data stored in the cloud. Law enforcement argues that such data are often the “building blocks” of a case, to establish the probable cause necessary to obtain a warrant for other information.
23. Should law enforcement need a warrant to obtain locational data precise enough to allow tracking of an individual’s movements over time?
The main federal cybercrime law, the Computer Fraud & Abuse Act (CFAA), criminalizes access to any system “without authorization.” The law is written broadly enough to criminally prosecute Internet users who create fake accounts in violation of a social network’s terms of service.
24. Should federal law continue to criminalize breaches of terms of service and employment agreements?
Congress has debated legislation that would make it easier for private companies to share information about cyber threats with each other and the government. Some worry that this could include sensitive personal information like emails or browsing history. Others argue that this is unlikely and that better information-sharing will make it easier for companies to defend their users’ privacy against malicious hackers.
25. Should it be easier for private companies to share information about cyber threats with the government even if that might include personal information?
The REINS Act would require congressional review of “major” agency rules, while the RESTORE Resolution calls for congressional overview of all agency rules to determine if a rule should sunset (expire), continue, or be otherwise adjusted.
26. Do you also support enhanced Congressional overview of all agency regulations?
As a general matter, regulations are reviewed by courts under a “rational basis scrutiny” standard — which means that almost all regulations are upheld. Lincoln Labs has proposed a heightened scrutiny standard: courts would strike down laws if the government cannot show that the law furthers a “compelling governmental interest” and that the law is narrowly tailored to achieve that interest.
27. Do you support heightened scrutiny for court review of regulations?
Unlike most countries, the U.S. charges American companies U.S. corporate income taxes on profits their subsidiaries earn abroad, even after that income has been taxed overseas. In 2005, Congress let companies repatriate (return) foreign earnings to the U.S. at an effective tax rate of 5.25% — instead of the normal maximum corporate tax rate of 35%. Over $320 billion was returned to the U.S. economy and over $17 billion in income tax revenue to the government. A similar approach today could return $500 billion to the U.S. economy and over $26 billion in corporate income tax. This issue is especially important to Internet companies that have large overseas businesses, but that currently do not bring foreign revenues home.
28. Do you support a bipartisan tax repatriation plan to reduce effective repatriation tax rates for the near future?
Businesses are currently able to take an immediate 50% tax deduction on qualified purchased property. Bonus depreciation passed in 2002, but its future is unpredictable. This uncertainty could deter billions in investment by Internet companies in new equipment, including in server capacity and broadband infrastructure.
29. Should bonus depreciation be made permanent to increase deployment in infrastructure?
The Constitution’s Due Process Clause bars states from taxing online sales transactions without a definite link or minimum connection between the state and person, property or transaction it seeks to tax. The Commerce Clause bars taxing companies that do not have a “substantial presence” in a particular state.
30. Should a company’s physical location, and the location of its resources, determine “substantial presence” for state tax collection purposes?