Congress has sidestepped efforts to modernize lesser-known tech laws. | M.Scott Mahaskey/POLITICO Disconnect: Old laws vs. new tech

Silicon Valley races every day to create flashy new products and anticipate the next wave of consumer demand. But when it comes to technology laws, Washington is stuck in the days of dial-up.

Congress has not only failed to grapple with the industry’s big-ticket items like immigration and patent reform, it’s also sidestepped efforts to modernize lesser-known tech laws that affect average Joes across the country — from rules that shield people’s emails and Facebook messages from police, to the law that limits how much consumers can tinker with software on their smartphones or other devices.


The stalled campaigns illustrate Washington’s struggle to update the nation’s antiquated tech laws, many of which were founded on rationales rendered obsolete by the evolution of the Internet and mobile devices. Tech isn’t the only sector that has trouble getting things done in D.C., but the industry’s rapid development — and the profound ways it is shaping modern life — make the disconnect all the more striking.

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The lack of action means less economic certainty for tech companies — and reform advocates say it limits consumers’ chances to find creative applications for new technologies, too.

“There’s a chilling effect,” said Tim Wu, a Columbia Law professor who coined the term “net neutrality” and recently ran for New York lieutenant governor. “There’s various types of freedom but freedom to tinker is actually kind of important — freedom to build things. When the law is too heavy-handed, we lose that freedom to build.”

Take the 1986 Electronic Communications Privacy Act, which governs law enforcement access to Americans’ emails, Facebook messages and Google documents. It was written when the Internet was in its infancy, at a time when Congress couldn’t conceive of the way people operate online today.

ECPA — which is used for criminal or civil law enforcement investigations, not national security surveillance — allows police and prosecutors to access emails that are older than six months using an administrative subpoena, not the tougher standard of a warrant required for newer messages. That system may have made sense in 1986, when an older email sitting in a server was a pretty good indication that the account had been abandoned.

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But with advances in cloud computing and online storage, it’s not uncommon for people to keep email messages for years, making that six-month distinction obsolete. Google, Microsoft and virtually the entire tech industry are pushing lawmakers to extend the warrant requirement to all emails. But a bill to do that — co-sponsored by more than half the House — is stalled in the House Judiciary Committee and hasn’t progressed in the Senate since it passed that chamber’s Judiciary panel more than a year ago.

It’s far from the only instance of a mismatch between tech laws and the way the Internet is used today.

Another frequent target of criticism is the Computer Fraud and Abuse Act, one of the nation’s primary computer crime laws. Reform advocates say the outdated language of CFAA, which was passed in 1986, includes a vague definition of what constitutes “exceeding authorized access” to a computer — and could be used to target relatively harmless infractions like violating a website’s terms of service.

Federal prosecutors used the law to charge Internet activist Aaron Swartz for gaining unauthorized access to computer networks and downloading millions of scholarly articles at the Massachusetts Institute of Technology. Swartz’s suicide last year as he was facing trial on 13 felony charges galvanized support for revising the computer fraud law, but a bill to reform it has received barely any attention in the House.

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Frustration over outdated statutes isn’t new, but the inability of Washington to enact any substantive tech reforms marks a change, according to policy veterans.

“Tech legislation since the beginning of the commercial Internet in the mid-90s has never been partisan,” said Daniel Weitzner, a former deputy White House chief technology officer under President Barack Obama who now teaches Internet policy at MIT. “The missing ingredient is a conviction that it’s possible to get something done,” he said.

Part of the problem: Lawmakers are getting an earful from entrenched interests that stand to take a hit if individual statutes get updated.

SiriusXM, for example, opposes a bill that would make satellite and digital radio providers pay performance royalties for songs recorded before 1972 — something they currently avoid because of a quirk of federal copyright law. Older recording artists are pushing the measure as a way to get compensated, but SiriusXM says new royalties could put it at a disadvantage versus broadcast radio stations, which aren’t required to pay artists to play their songs.

Even though no one in Washington is defending the current pre-1972 rule, a House bill to get rid of it hasn’t received a committee vote.

“Initially, loopholes were an accident of technology. Now, the loopholes are part of the business plan,” said Alvaro Bedoya, a former technology staffer to Sen. Al Franken (D-Minn.) who now serves as executive director of Georgetown Law’s Center on Privacy and Technology.

Parts of the government also benefit from older rules.

The Securities and Exchange Commission, for example, is the loudest opponent of the proposed ECPA changes, saying warrantless access to older emails is crucial for its civil investigations. The SEC’s stance puts it at odds with the White House, which favors updating ECPA. But White House efforts to forge a compromise — including an attempt last month by White House counselor John Podesta — have not been fruitful, according to sources familiar with the talks. A White House aide said the effort is ongoing.

Some in Congress say they are making strides on the tech policy front. Two powerful panels, the House Judiciary and Energy and Commerce Committees, are preparing broad reviews of copyright and telecom laws, respectively. But when lawmakers do make a direct foray into technology law, they often stick to baby steps — and avoid sweeping changes.

That was the case with a cellphone unlocking bill passed by Congress and signed by Obama in July. The legislation lets people adjust their phone settings to use on a different cellular network, reversing a 2012 Library of Congress ruling that outlawed the practice. But it’s only a temporary change; the Library of Congress is due to take up the issue again next year.

Meanwhile, a bill that would permanently address cellphone unlocking as part of a broader reform of the underlying Digital Millennium Copyright Act has gone untouched in the House Judiciary Committee.

“Even when things do pass, they often are not bold, new stakes in the ground,” said Sascha Meinrath, director of the New America Foundation’s X-Lab. “They’re minimalistic, marginal pivots that don’t fundamentally solve the problem. We’ve mortgaged such a huge number of problems that it’s going to be quite haunting for us.”