August isn't the top time of year for thinking about tech policy. For many, it's vacation time, a month when Americans are more focused on hacking a path to the nearest beach than hacking their computers.
Congress just left for vacation too, heading home last week for its traditional August recess. When it returns to Washington, election season will be in full swing, which means that betting on the passage of any bold legislation later this year is a long shot.
In light of that, now (and not December) is when we can look back at what activists, companies, and lawmakers were hoping to accomplish in the 113th Congress—compared to what actually happened. Which is to say "not much."
The current Congress is on track to go down as the least productive in modern history. Sure, counting bills is a simplistic measure, since they vary greatly in importance and complexity. But whatever the metric, no serious observer—or member of Congress, for that matter—could argue that this is a Congress that got much done.
The most-touted piece of tech-related legislation in 2014 was a bill to re-legalize cell phone unlocking. It restores a legal "exemption" that will have to be looked at again in 2015. It's not meaningless, but it's a tiny change, passing in the most timid form it could have taken.
The Congressional standstill in tech policy is as visible and as hurtful as it is in any policy area. But there's little excuse for it. Much of American political life results from the chasm between Republicans and Democrats: big-issue disagreements about taxes, health care, and hot-button social issues.
Technology issues, by contrast, nearly always have zones of bipartisan overlap. Copyright and patent reform, privacy, surveillance, and even (less so) immigration: sure, they're contentious, but they're not exactly the kind of radioactive no-fly zones that paralyze other areas of politics. Republicans like to lambast Obamacare, not patent trolls; Democrats campaign for gay marriage, not the right to circumvent digital locks.
So as we commemorate the August Congressional break, let's begin with a list of six tech policy issues that Congress really, really should have addressed this year—but didn't.
These aren't wild hypotheticals. In each situation, bills were in debate, with meaningful support from both parties. A few of them, like immigration, involved truly tough choices. But others should have been "no-brainers," areas of law where it should be head-poundingly obvious how to proceed to make at least some forward motion.
One: Pass anti-troll patent reform
No tech issue in the 113th Congress showed more promise—and ultimately fell down harder—than patent litigation reform. The issue of "patent trolls," companies that have no business outside of threatening patent lawsuits, hit the big time in 2013.
In no small part, that's because the trolls invaded Main Street USA en masse. Bottom-of-the-barrel patent trolls sent out demand letters, asking small businesses to pay up for things like using off-the-shelf wireless routers and scanners. Any member of Congress who hadn't heard of the "trolls" surely has now.
Various early proposals were rolled into the Innovation Act, which ultimately passed the House of Representatives on a 325-91 vote. The bill wouldn't have shut down patent trolling, but it would have made it a lot harder on the trolls, giving tools to companies that were inclined to fight back. The law would have created an increase in fee-shifting in patent cases, making more patent-holders pay up if they pushed bogus cases through trial. The bill also would have increased transparency, forcing patent owners to show who's really behind a threat instead of hiding behind shell companies. Manufacturers could have intervened to stop troll lawsuits against their customers.
In the end, it was all for naught. Things got bogged down in the Senate. Insiders who spoke about the death of the patent bill said that two groups with serious political juice, big pharma companies and trial lawyers, pulled out the long knives to kill the bill. More constituent-friendly opponents, like universities, provided cover.
Reports on the bill's untimely death all pointed to Sen. Majority Leader Harry Reid (D-NV), who told Judiciary Chairman Sen. Patrick Leahy (D-VT) that the bill wouldn't be allowed to go to the floor.
The issue isn't going away. "Patent troll fight ends in retreat," was the headline dropped on Vermonters' doorsteps by the Burlington Free Press.
"I think it's disgusting," Jerry Tarrant, the COO of local tech company MyWebGrocer, told the paper about the bill's failure. "The president of the United States comes out and strongly supports it. He mentions it in his State of the Union address that he wants to see a bill. And the Democratically controlled Senate can't even get a bill to the floor for a vote?"
Leahy gave the newspaper his first postmortem comments on the saga, pointing the finger at Reid.
"I am furious with what happened," Leahy said. "We worked so hard to get a coalition. Harry Reid and a couple of others said, 'We won't let it come to the floor.' I think that's wrong, but I'm not going to give up."
CHIEF BACKERS: President Barack Obama. In the Senate, Sens. Charles Schumer (D-NY) and John Cornyn (R-TX). In the House, Reps. Bob Goodlatte (R-VA) and Hakeem Jeffries (D-NY).
OPPONENTS: Pharmaceutical and Biotech companies. Trial lawyers. University groups. Patent trolls.
WHERE'S THE GRIDLOCK? Senate Majority Leader Harry Reid (D-NV).