April 20, 2014

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Congressman Issa’s “Internet Law Freeze”: Appealing but Impractical

This week, Congressman Darrell Issa released a draft bill that would prevent Congress and administrative agencies from creating any new internet-related laws, rules, or regulations. The Internet American Moratorium Act (IAMA) is a rhetorical stake in the ground for the notion that the government should “keep its hands off the internet.” In the wake of successful blockage of SOPA/PIPA legislation–which would have interfered with basic internet functionality in the name of combating content piracy–there is renewed energy in DC to stop ill-advised internet-related laws and rules. Issa has been quoted as saying that the government needs a, “cooling-off period to figure out a better way to create policy that impacts Internet users.” The relevant portion of the bill reads:

It is resolved in the House of Representatives and Senate that they shall not pass any new legislation for a period of 2 years from the date of enactment of this Act that would require individuals or corporations engaged in activities on the Internet to meet additional requirements or activities. After 90 days of passage of this Act no Department or Agency of the United States shall publish new rules or regulations, or finalize or otherwise enforce or give lawful effect to draft rules or regulations affecting the Internet until a period of at least 2 years from the enactment of this legislation has elapsed.

It is hard to disagree with the idea that our lawmakers and administrative agencies need to do a better job at understanding the implications of their internet-related actions. It is also true that current internet-related law represents a generally beneficial balance between government intervention, individual freedom, and legal safe harbor for the innovators that have made the internet into a platform for growth and human flourishing. That being said, internet technology does not stand still, and the policy dilemmas that these changes present will not wait for a more informed congress or administrative bureaucrats.

Indeed, Congress is wrestling right now with critical internet-related legal issues that are long overdue. The Senate Judiciary Committee held a hearing today to debate updates to the 1986 Electronic Communications Privacy Act, which many technologists and privacy advocates consider to be mis-matched to today’s technology. The Federal Trade Commission is debating updated rules related to the Child Online Privacy Protection Act, which have not been revised in more than a decade. The Federal Communications Commission promulgates rules on a nearly daily basis that “affect the Internet”–including minor clarifications to uncontroversial rules and orders that are critical to business operations of internet-related companies. The Commerce Department is facing urgent decisions with respect to proposed ITU and ICANN governance proposals. What’s more, it is unclear what delineates a law or rule that “affects the internet” from one that does not. As society increasingly relies on the internet in all aspects of life, it is hard to imagine a rule or law that does not “affect the internet” in some way.

Furthermore, even if Congress and the administrative agencies halted all activities in this area, the courts would continue to make law related to the internet. Countless cases are making their way through the justice system, many of which could have the effect of changing existing rules or laws. It seems that Congress and the administrative agencies would be unlikely to be willing to surrender these decisions completely to the courts.

The spirit of the draft bill is laudable, but it is impractical to expect internet policy to wait for Congress and the administrative agencies to gain the expertise that they need. Indeed, if we were to do that, two years may be far too short a time period.