December 22, 2010 | By Kevin Bankston

2010 Trend Watch Update: Congress

At the beginning of this year EFF identified a dozen important trends in law, technology and business that we thought would play a significant role in shaping digital rights in 2010, with a promise to revisit our predictions at the end of the year. Now, as 2010 comes to a close, we're going through each of our predictions one by one to see how accurate we were in our trend-spotting. Today, we're looking back on Trend #8, Congress, where we predicted:

In retrospect, 2009 wasn't disastrous for online civil liberties in federal technology law. With Washington entirely distracted by health care reform, a lot of the most problematic proposed federal technology legislation was delayed, postponed or temporarily forgotten.

In 2010, we may not be so lucky. Key provisions of the Patriot Act, having recently been granted a three-month extension, are up for re-authorization before April 1. The Snowe-Rockefeller Cybersecurity Act, which would grant the President the power to disconnect the Internet, is likely to return sometime in 2010. And, with immigration reform considered a top priority for Congress this year, we can expect to see the national identification card scheme REAL ID (or its twin, PASS ID) again soon.

Admittedly, predicting a tough year in Congress for civil liberties was a no-brainer: As Mark Twain put it, "No man's life, liberty, or property are safe while the legislature is in session." However, other than the disappointing one-year re-authorization of the USA PATRIOT Act--which passed in the Spring with little debate and without a single reform being added to that surveillance law despite a hefty record of demonstrated government abuses--our digital civil liberties actually made it through the Congressional year relatively unscathed. As predicted, cybersecurity remained a hot issue with several bills in play and a lot of overheated rhetoric about the risk to the U.S. from a "electronic pearl harbor", but no bill passed. And, happily contrary to our predictions, plans for a national ID card appear to have stalled, hopefully permanently.

The biggest threat to online freedom this year came in a form we didn't expect: Senator Leahy's Combating Online Infringements and Counterfeits Act ("COICA") internet censorship and copyright bill, which was unanimously approved by the Senate Judiciary Committee despite fierce opposition from EFF and others. That bill or something like it will certainly rear its head early in the new year. We also got a preview of perhaps the biggest Congressional battle for civil libertarians in 2011 when the FBI made clear its intention to seek an expansion of its wiretapping capabilities next year through an expansion of CALEA, the Communications Assistance for Law Enforcement Act. That law currently requires phone companies, broadband carriers and interconnected VOIP providers to design their systems to be easily wiretappable by the government. Now, the FBI wants to expand that surveillance tech mandate to require surveillance backdoors for all Internet communications, with particularly grave implications for the privacy of encrypted communications.

But there were also some bright spots in the Congressional record this year that point toward good things in 2011. First, Representative Bobby Rush introduced a broad consumer privacy protection bill that garnered support not only from privacy advocates but even some major online businesses like Microsoft and eBay, and as chairman of the House Commerce Subcommittee he also held a hearing on the possibility of legislation to support a "Do Not Track" technology to give online consumers control over how they are monitored online, setting up online consumer privacy as a major issue for the next session. In another positive development, EFF teamed up with other civil liberties organizations and major internet companies to form the Digital Due Process ("DDP") coalition and press Congress to update the antiquated Electronic Communications Privacy Act of 1986 ("ECPA"). Working with the DDP coalition, EFF is pushing Congress to make clear that if the government wants to secretly seize the contents of your webmail account or enlist the phone company to track the location of your cell phone, it needs to have a search warrant based on probable cause. Prompted by the debut of the DDP coalition's principles, Congress held four hearings on the issue of ECPA reform in 2010, with reform bills expected in the New Year.


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