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Art Brodsky

Art Brodsky

Posted April 29, 2009 | 11:49 AM (EST)

100 Days In Obama Tech Policy -- A Solid B With Strong Upside


The Obama Internet and tech agenda came roaring out of the transition and Inauguration under a full head of steam. Now, it's more or less creeping along, bogged down and becalmed largely by circumstances beyond its control. It may be months before the Obama team regains its full-power tech policy mojo. It may be longer before they regain the tech chops that made the campaign such a juggernaut. And yet, there is reason to hope.

Throughout the presidential campaign, the Obama team had the most complete and progressive tech policy and tech-policy team ever assembled. The policy team fashioned a document that hit every right note, starting with "Protect the Openness of the Internet: Support the principle of network neutrality to preserve the benefits of open competition on the Internet." The policy team had many of the leaders in the field and a large advisory group from across the tech spectrum.

When the Obama administration took office, the table had been set through the efforts of Congressional Democrats, primarily Rep. Ed Markey (D-MA), with the support of the transition tech team. Congress passed in the stimulus legislation a law that, for the first time, supported the ideas of Net Neutrality-like non-discrimination and openness for the Internet. Those conditions would apply to projects built with Federal stimulus dollars. The stimulus bill also directed the Federal Communications Commission (FCC) to come up with a national broadband plan, and had mandates and lots of spending for smart electrical grids and health information technology.

The administration had lined up a stellar cast of tech policy makers, starting with Julius Genachowski. The pick be the FCC chairman, Genachowski is a law-school friend of the president who had been legal counsel to an FCC chairman, worked for media mogul Barry Diller's Internet company, IAC, and been a venture capitalist.

Jon Leibowitz, as chairman of the Federal Trade Commission, could also have an impact around the edges of Internet policy, particularly when it comes to protecting consumer privacy and collection of information. A veteran commissioner but new chairman, Leibowitz, a former Senate staffer, has to decide how aggressive he will be.

Outside advisors like Google CEO Eric Schmidt, lower-level appointees such as Christine Varney, who heads the Justice Department's Antitrust Division, Chief Information Office Vivek Kundra and Chief Technology Officer Aneesh Chopra, and Larry Strickling, the designated head of the National Telecommunications and Information Administration (NTIA) in the Commerce Department, are all set to be stars. Add in stellar staffers buried in the White House bureaucracy like law professor Susan Crawford and former Clinton standouts Jim Kohlenberger and Tom Kalil, and Alec Ross as taking charge of innovation at the State Department, and there is the potential for a fabulous tech-friendly administration.

Obama Picks Have Lots of Potential

Potential here is the key word, because many of those smart people have either not been allowed to take their jobs, as in Genachowski's case, or are just getting started. Much of the Internet policy would run through the FCC. Congress frankly doesn't want to tackle big issues like Net Neutrality or, in a broader context, opening up the broadband Internet service to competition. It has to be done by the Commission and Senate Republicans are making sure the FCC continues to muddle along under interim Chairman Michael Copps -- a firebrand of a commissioner but not one to take controversial actions as chairman, although he did preside over the procedural start of the stimulus-required broadband plan by putting it out for public comment.

Placing FCC commissioners is a complex dance. They come and go, filling each other's unexpired terms, with the party controlling the White House gaining the majority on the five-member panel. In theory, the current situation should be an easy one. The five-year term of Jonathan Adelstein, a current Democratic commissioner, has expired and Adelstein's next stop is as the head of the Rural Utilities Service, for which he has been nominated. Genachowski has been nominated to fill Adelstein's term.

A straight Genachowski-for-Adelstein swap would make things easy, but Senate Republicans aren't letting that happen. They insist on holding up Genachowski until they get a Republican candidate to fill the seat of former Commissioner Deborah Tate, who had three years and change to go on her term when she left in January. But the Senate Republicans can't make up their mind on a candidate, and they are holding up Genachowski until they do. As a result of all of this partisan recalcitrance, the main engine of Internet policy is stalled.

Internet Policy Delayed For Months

At this rate, Internet policy might have to wait until mid-summer at the earliest, just to get started, to say nothing of staffing up the heads of the various FCC bureaus and offices with picks made by the Chairman. The FCC politics get even more complicated, because yet another Democratic seat has to be filled. That one, too, has a probable candidate, Mignon Clyburn, daughter of House Majority Whip James Clyburn (D-SC). To make it more complicated, some Republicans are gunning for Robert McDowell, the Republican now on the Commission, whose term doesn't expire for another couple of years.

Even when he assumes office, there's no way to know whether Genachowski will take the bold steps necessary to carry out the campaign policy document he took the lead in writing, or whether he will proceed with lawyerly, bureaucratic caution. That's just on the big, high-profile issues. There are dozens of others that exist below the radar of all except for those of the telecom policy ecosystem that nonetheless have big money involved and lots at stake for consumers. For the moment, Genachowski gets the benefit of the doubt based on past performance.

Meanwhile, NTIA, still without an agency head, is struggling to decide the guidelines for their $4.7 billion chunk of broadband stimulus money, and then will have to decide which applications will be the winners. Those calls will be made by the NTIA staff, surely with input from the White House. Given the specificity of the law, the non-discrimination and openness characteristics will be hard to evade, even given the heavy lobbying from the telecom and cable industries. The NTIA staff will be hard pressed as well to keep those telecom and cable companies from taking over the broadband mapping process as well. Again, the group has performed well so far, but the results are yet to come.

Kundra, the Mr. Inside dedicated to improving government information technology, and Chopra, the Mr. Outside who will evangelize for better technology, are just getting started. The fact that those jobs exist, and that two dynamic individuals are in them, at least portends well.

Meanwhile, the Federal Energy Regulatory Commission and Department of Energy are plugging along with smart grid programs. That's all to the good.

On The Other Hand...

While the policy apparatus is based largely on potential, the actual tech workings of the White House and agencies isn't doing as well. The Obama campaign staff, coming off of an operation with the best tech toys, best new media strategists and an almost unlimited budget. They walked into an Internet Dark Ages and have been digging out ever since.

Those who watch the developing transparency in government are inclined to give the Administration the benefit of the doubt, for trying. If the Office of Science and Technology Policy (OSTP) can have a Twitter account (#ostpolicy) and blog, all is not lost. But that FCC Web site -- such a disaster.

There is one darker area in the midst of all this positive potential. Over at the same Justice Department that strengthened its antitrust division with Varney, law professor Phil Weiser and consumer advocate Gene Kimmelman, the entertainment industry has made significant inroads. As tech and intellectual property policy start to merge, it's scary that there are five, count 'em, five lawyers from one firm, Jenner and Block, who came into DoJ from representing the entertainment industry in private practice. Their former clients see tech as the enemy and fair use as anathema, rather than see tech as empowering and fair use as, shall we say, legal. To have that mindset in the DoJ is scary.

There are still key intellectual property appointments to be made, primarily for the Administration's Intellectual Property coordinator and head of the Patent and Trademark Office. No candidates for either have reached critical mass, even in the rumor mill. Recognizing that entertainment is a long-time Democratic constituency and source of contributors, it would be a shame to have a progressive tech policy on one hand that would be hollowed out by Hollywood on the other.

The Obama team has only been officially on the job for 100 days, an artificial designation that Franklin D. Roosevelt would probably take back if he knew the pressure it would place on his successors. But, to follow tradition, we'll give the team a 100-day B, based on the vision, personnel and strong potential to do great things.