Will the New Congress Pass a Tech Agenda? Orrin Hatch Says Yes.
The head of the GOP High Tech Task Force wants bills on patent trolls, email protection and high-skilled immigration. But no action on net neutrality or the NSA.
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When the 114th Congress is seated in January, Silicon Valley will look to Senator Orrin Hatch of Utah to either promote its agenda or thwart it. Hatch is head of the Republican High-Tech Task Force and (in his seventh term) is the longest-serving Senator of the soon-to-be majority party. So no one is better placed to assess the chances that the new Congress might blow past the current gridlock that saw almost no advancement on tech issues. On the day after President Obama’s executive order on immigration, Senator Hatch was still steaming when he spoke by phone to Backchannel.
The interview is edited for length and clarity.
[Steven Levy] The current Congress has done very little on technology issues. With a Republican majority in the Senate, will we see some completed legislation in tech?
[Orrin Hatch] I don’t think there’s any question. It’s going to be tough. But I think we have a better chance. You take the patent troll legislation—we had that done. But the Democrats threw the high tech community under the bus because the trial lawyers raised such a fuss with them. [The lawyers] hated my provision, because if they put my provision in on that particular bill, they couldn’t get away with all the crap they wanted to get away with.
Which provision do you mean?
To have an effective bill you have to include mandatory fee-shifting [meaning that if a patent troll loses a case, it must pay legal fees], heightened discovery standards, and a mechanism to enable recovery of fees against shell companies. It won’t work without having all of those provisions in.
Do you feel that the Democrats beholden to trial lawyers might try to filibuster patent troll reform? Or will the new majority tip the scales to passage?
We’re hoping we can tip the scales. It’s inexcusable to have these patent trolls that bring this litigation against small companies, let alone big companies, and they do it with shell corporations—if they lose, they never have to pay anything, anyway. It costs up to two million bucks to defend one of these things. There is so much momentum behind this bill. Obama claims that he wants it and he wants a win in this. I think we can give it to him but it’s going to be hard.
There’s a feeling that Republicans have opposed bills that President Obama supports — even those they agree with — simply to deny him victories. Do you agree with that assessment?
Not in these areas. Frankly, we could have used Obama really stepping in and fighting for [the patent troll reform] but he didn’t.
Another bill you’re co-sponsoring is called LEADS — Law Enforcement Access to Data Stored abroad. Among other things, it would mean that data stored on servers overseas would be subject to local laws. And warrants would be required for the government to get data concerning U.S. persons. That’s something tech companies want, so international customers won’t abandon them.
I want to give credit to Chris Coons and Dean Heller who are with me on this. The LEADS Act begins a discussion on the complex and important issue surrounding data privacy in the digital age. The confidentiality of business data and electronic communications and their protection from arbitrary government seizure are really of the upmost importance. In order for our U.S. companies to achieve their full potential, for our nation to maintain its position at the pinnacle of innovation and competitiveness, our data business records and other electronic information just have to be protected from arbitrary government intrusion. I mean we just have to. The LEADS Act is a must-pass bill next congress. It would promote trust in U.S. IT technologies worldwide and it would enable law enforcement to fulfill its public safety mission. I don’t see how anybody could be against it.
Speaking about privacy, what about a Do Not Track bill, which would allow people to stop unwanted surveillance of their private browsing habits? Would you support something like that?
We’d have to see about that. We’ve got to be careful that we don’t go too far with the law so that it stifles innovation or that it stifles law enforcement or that it stifles the personal privacy rights of people.
You oppose net neutrality. Lately the President has been aggressive in affirming his commitment to it. If FCC Chairman Tom Wheeler does what the President wants to do and reclassifies the Internet as a telecommunications service, will Congress act to roll that back?
The last thing we need, in my opinion, is the government telling ISPs how to carve up bandwidth. I’m sure Congress will act if [the FCC] regulates the Internet. There is no question about that.
Are you comfortable with big mergers like Comcast/Time Warner and the other ones we’ve seen in telecom that put a lot of our infrastructure in the hands of very few companies?
Many of my Democrat colleagues have never met a merger that they actually liked. My belief is that government intervention risks harming consumers and innovations by protecting competitors from market forces. Consumers benefit when the government allows free markets to allocate resources. There is nothing that can tie things up for decades like anti-trust litigation.
Congress allowed the corporate tax credit for R&D to lapse. You support making it permanent. Haven’t other Republicans talked about opposing that because it would increase the deficit? Do you think you can win over your colleagues in the GOP?
I think so. It’s in the tax expenditure package. I think if we could make it permanent we would incentivize investment in research and development. Over the long haul it actually pays off to do it.
A lot of scientists feel that the government cutbacks in basic research, for example at the National Institutes of Health, will hurt us in the long run. Do you think Congress will find a way to replace some of those lost funds?
If I had my way, we would build up NIH to be much larger than it is. We get a pretty good bang for the buck out of NIH. There are so many things we need to do. We need to lower the corporate tax rates. At thirty-five percent our tax rate is the highest in the developed world and it’s a chokehold on the economy. If we got that down, we would keep our companies here and they’d be happy to stay here. I’d like to get the corporate tax rate down to no more than twenty-five percent. I’d prefer it to be lower than that.
Even without those tax breaks, companies like Apple and Google seem to be doing terrifically.
They are. And they would do better at home and they would bring that money home if they knew that they weren’t going to be gouged every time they turn around.
You are co-sponsor of the Immigration Innovation (i-Squared) Act, which would make it easier for high-tech companies to get visas for overseas talent. Do you think that President Obama’s executive order on immigration will affect that proposed legislation?
The President demonstrated that his priorities are polarization and partisanship, not working across the aisle to get things done. Frankly, he doesn’t have the authority to do that. He has said he’s not a king or an emperor and yet he turns around and does this. It makes [visa reform] even more difficult, because now everybody’s mad. The President’s executive order cannot provide a permanent solution to our country’s inadequate and outdated employment-based immigration laws. But I’m going to work really hard on getting a good immigration bill that covers the whole area. We should start with areas of widespread agreement — like high-skilled immigration. The I-Squared Act, which is a bipartisan immigration innovation act, addresses most if not all of the tech industry’s immigration needs. We need to increase the H1-B visas. Currently the cap is 85,000 a year. This year alone we had 172,500 submissions. That means American companies were unable to hire nearly 90,000 high-skilled workers that we’ve educated. I mean, talk about stupidity!
You voted no on reform that would limit the NSA’s collection of phone metadata on all Americans. Why?
I was the longest-serving Republican on the Senate Intelligence Committee before I left a couple of years ago. I lived through all the hearings, all of the top materials, all of the information about the FISA Court and how it worked and functioned. People who want to lessen those powers are really doing this country a great disservice because we are going have more terrorism acts. We’ve got to be on top of them the best way we can and that means doing what the original act says we should do. [The government does] collect data, metadata, but they do not eavesdrop until they get a warrant to do so and until they have the appropriate legal authority. But without the metadata collection we will not have the ability to try and catch these people.
The program is due to expire next year. Will congress renew it? A lot of legislators, including some people who voted for the Patriot Act, are against it.
We have to re-up it. It’s always nice to blow off about privacy concerns. I think we have to protect privacy, but [the government is] doing that. Listen, ISIS and Al-Qaeda, which may be pretty much one and the same, say they’re coming to America and there’s going be blood in our streets. How much more warning do we need to have to protect the American people? Now, we may be able to find some ways to improve that legislation. But you don’t want to play with the security of this country.
In January President Obama suggested some reforms in areas such as where the data would be stored.
Can you imagine? There are twenty-two people who actually look at the data today under the current law. And [the President’s] idea was to give it to the various telecom companies. There’s over 125 of those companies and thousands of employees who have access to this sensitive data. Now how is that protecting our privacy? It isn’t.
Well I’m sure not every employee in the telephone company would have access to that metadata, just as not every employee of the NSA has access to it.
Yeah but it would be a hell of a lot more than 22 top cleared science experts. The people who make these arguments are playing politics instead of worrying about our national security interests. There are at least two or more countries that have the capacity to interfere with our national infrastructure. When are we going to wake up and realize we’ve got to fight these kinds of things with every tool at our disposal? I don’t know anybody who wouldn’t give up some privacy to be able to protect themselves from these evil people if they really understood the facts.
Maybe there are other ways to do it besides collecting metadata on everybody.
No, unfortunately I don’t know of any other way of doing it and I’ve looked at every other possible way you could do it. The simple answer is to allow this current system to work because it’s carefully monitored, you’ve got really careful leaders handling it, you’ve got all kinds of hedges to prevent any disclosures and leaks. You’ve got the courts involved. I happen to know the judges that have been on the FISA court and they think the system is a pretty good system, most of them. You’ve got an awful lot of members of Congress who have been on the intelligence committees who understand these matters and do not want to risk the health and safety of the American people. These important issues are not as simple as some tried to make it out with this last bill.
Do you believe that all Americans are entitled to last-mile access to the Internet? Is it Congress’s job to make sure that happens?
Free markets determine the specifics of how broadband networks are developed. These networks ease the process of expanding the wireless spectrum so I think we should be doing everything in our power to encourage that. We should be using the limited resources of the Universal Service Fund to bring broadband to parts of the country to people who don’t have access now. The last thing I want is anybody interfering with all of the high tech approaches that we have today.
We’ve discussed a number of potential bills that might pass in the 114th. Is there one you would consider a slam dunk?
Well I hope the patent troll bill is. But if the trial lawyers come in with their full weight we’re going to have a rough time getting it done.
Thank you, Senator, I really appreciate your time.
Well, thanks for calling. Now, don’t screw me!
Oh no — I don’t do that. You’ll find an accurate representation of our conversation.
I’m just kidding. Hang in there.
