So how should the 115th Congress legislate with respect to tech and telecom? Generally speaking, lawmakers should avoid imposing new mandates and prohibitions in response to new technologies that might seem threatening, absent exceptional circumstances. Instead, lawmakers should focus their efforts on modernizing—and, in many cases, eliminating—obsolete regulatory regimes that were devised decades ago and depend on the discretion of independent agencies such as the Federal Communications Commission.
Protecting Internet freedom and innovation should be a top priority for the new Congress. This includes not only the content and apps that nearly all Americans have come to use and enjoy, but also the underlying infrastructure that makes these services possible. Over the past few years, the FCC has embarked on a regulatory voyage based on the agency’s decision to reclassify broadband Internet providers as “common carriers” subject to public utility-style regulation under the 1934 Communications Act. As companies increasingly offer both facilities and content, as Google and Verizon already do, the FCC’s agglomeration of powers may well transform the agency into a de facto Internet Regulation Commission. Only Congress can ensure this doesn’t happen.
Instead of focusing on regulating America’s tech industry, Congress should level the playing field between the government and the governed by updating the legal framework that empowers law enforcement entities to compel private companies to divulge private information about their users. Specifically, Congress should enact the Email Privacy Act—a bill passed by the House of Representatives in a unanimous vote in April 2016—to require officials to obtain a warrant based on a showing of probable cause before a service provider may be required to hand over the contents of a user’s stored communications. By reaffirming our nation’s commitment to individual liberty in the information age, Congress can reassure Americans that using the Internet and other cutting-edge platforms does not mean saying goodbye to privacy—and that fighting crime and protecting national security are consistent with the Fourth Amendment.
Congress should also refuse to allow states to export their sales tax regimes to other states’ businesses for purchases made over the Internet. Previous bills aimed at tax “fairness” would impose crippling compliance costs on online vendors, potentially inducing firms to relocate their operations abroad. Genuinely fair legislation would treat all types of sellers the same way and honor the Constitution's federalism principles through an origin-based approach to online commerce sales tax, as my colleague Jessica Melugin has explained in several studies.
For more details on our tech policy suggestions to the 115th Congress, check out the full chapter in our Agenda for Congress here.