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House Judiciary Chairman: Government classification system has been ‘abused’

Rep. Bob Goodlatte (R-Va.). (Bill O'Leary/The Washington Post)

The House Judiciary Committee sits at the intersection of law and technology. It has jurisdiction over copyright and patent law, the Patriot Act, and Internet governance. Last week, I sat down with its chairman, Rep. Bob Goodlatte (R-Va.), in his Washington offices for a chat. The following transcript has been edited for length and clarity.

Brian Fung: The chairman of the House Oversight Committee, Rep. Darrell Issa (R-Calif.), has reversed course on the proposal by Rep. Justin Amash (R-Mich.) to defund the NSA's surveillance program. Have you had second thoughts on voting against the proposal, as chairman Issa has?

Goodlatte: No. I think this is a serious problem that needs to be addressed, but it needs to be addressed in the committee of jurisdiction, which is the House  Judiciary Committee. We're the committee where the Patriot Act originated. We have held hearings both public and classified on this issue, and former chairman Jim Sensenbrenner (R-Wis.) has announced a bill that he will introduce with other members very soon that is a contribution toward addressing the problem.

The problem with the Amash amendment wasn't that it wasn't well-intentioned — it was that it had additional complications that touched upon things that most people would find are things we shouldn't stop. The dispute is not so much on the ability of the government to access the data so much as under what circumstances, under what kind of transparency, given that we're talking about preventing terrorist attacks and spying and that kind of thing, and given the fact that it has always been possible in various forms to access data in doing an investigation.

The Amash amendment cut off funding for the application for Section 215 of the Patriot Act, which meant that some of the things that are allowed in the Sensenbrenner bill and some of the things that are not allowed in the Sensenbrenner bill, money would be cut off for both of them. You need to take a scalpel to this and do it carefully. The issue that underlies all this is whether the government should be able to collect the data and store it. And the Amash amendment was designed to stop that. I understand that objective, but it also stopped other things as well.

Does that mean you would be in favor of a Wyden-type proposal that would end bulk metadata collection?

No. It means I am in favor of addressing this problem very carefully to make sure we address the issues of what's appropriate under Section 215 and what's not appropriate under Section 215 and making sure we draw the line very, very carefully. But no decisions yet have been made about where that line should be drawn.

What about some of the other Senate proposals that would rein in the NSA?

Well, I'm familiar with the Wyden proposal. I know that Sen. Patrick Leahy (D-Vt.) is working on a proposal that is at least similar — I don't know if it would be the same — it would be similar to what chairman Sensenbrenner is proposing. And I would just say that in my opinion, there are problems that need to be addressed in terms of the scope of Section 215, the transparency of the FISA courts, and other related issues that we intend to address in the committee, but at this point in time that's as far as I'm willing to go.

Would you like to see more documents declassified by the intelligence community at this point?

In general I think that's true. That's probably not the jurisdiction of the committee; that's probably more along the lines of the intelligence committee, though I've never really looked into it. I think that there is an abuse of the classified documents system by people who too readily classify things because it doesn't fall back on their head if people don't know what they don't know. Anything that designs a more efficient system of declassifying documents and letting the public know what they should know — and letting them know as soon as possible what they should know, or have a right to know — is important and is worthwhile but I'm not an expert in that area.

I'm not aware of that being a part of these legislative proposals but if they are, they would probably be split among different committees. How information develops about government activities and decision-making processes, when and how that can be declassified, that's well worth reforming based on what I know about it.

Speaking of privacy, Sen. Jay Rockefeller (D-W. Va.) has talked about Do Not Track legislation. Is that an issue you're following or planning to bring up in the House?

We're definitely following it. At this point we have not taken any action on it. This gets into one of the interesting aspects of this issue, and that is that we have government metadata gathering, which, compared to the private sector metadata gathering, is unsophisticated and miniscule — but it's for different purposes and different benefits to the consumer. If you're not careful about how you do this, you could wind up destroying some of the important benefits of the Internet. If you make it too hard — to require, for example, an opt-in approach [to targeted advertising] — then all the benefits you enjoy offline, people knowing things about other people's spending habits and so on, if you try and prohibit that on the Internet, you could take the information off of the information superhighway.

If I go on and they know that I like biographies, if they shoot me an e-mail that says, 'Welcome back, Mr. Goodlatte! We have a biography of Theodore Roosevelt that we want to tell you about,' I could be all offended about that, and I could say, 'Don't tell me about biographies.' But I'm not sure it's a good idea for us to say, in a broad-brush fashion, under no circumstances can you track information. You've got to be careful that you don't go to the level of saying you can't do anything unless you get permission first. People understand how the Internet works. They understand the conveniences that are created by cookies and other things that are on the Internet, and if you were suddenly to turn all that off, you would have a major loss of information that's very useful to individuals and consumers.

Turning to patents — you've proposed to modestly expand a program to invalidate low-quality patents. There are also proposals that would go even further. What's the argument against those proposals?

There are two arguments. One is, you've gotta pass legislation you can actually pass and be signed into law. The other is, as a practical matter, this legislation is more geared towards trying to follow up on the American Invents Act — which, if you were to capsulate that in one sentence, you'd say it's designed to increase the quality of patents designed in America and the speed at which they're produced. What it didn't address is the fact that there are litigation issues related to poor patents that have been produced in the past. And even with a better system, some will be produced in the future that need to be prevented from being used as tools for arbitraging the cost of litigation.

What we're after are people who are trying to make money off the cost of litigation, who write thousands of letters and say, 'We've got a patent here, and we think you're infringing that patent; if you don't pay us X number of dollars, we're going to sue you.' If all it is is a patent that doesn't have value or doesn't apply to the circumstances they're attempting to apply it to, we want people to be able to say, 'No, I'm following the rules and I have a valid license from over here that gives me authority to make the thing I want to make. If you want to sue me, fine, but you're not going to be able to abuse the litigation system in order to do that.' That's the main focus of that legislation.

When we wrote the AIA there was a demonstration project, if you will, with regard to certain financial service sector patents that come under the larger ambit of what's called business method patents. There are some people that want to expand that, there are people that want to contract that. We want that to continue, and so we have written something that we think is a fair compromise between those two desires that are presented to us and that conflict with each other. We can't go all one direction or another — we wouldn't be able to pass it.

FCC Commissioner Ajit Pai said recently that if the International Telecommunication Union continues to try to assert itself over Internet governance, the United States should consider defunding it. Is that something you would support?

I haven't heard that statement. I'd have to look into that further because we have been very concerned about efforts by international governmental organizations to try to find a handle to regulate the internet. The ITU is certainly high on that list. I've been a long outspoken critic of efforts by the United Nations and other international organizations to try to set up an international governmental regulation of the Internet.

It's a unique thing that ICANN functions as an independent non-governmental entity. We have expressed some concerns about things ICANN has done, including the top-level domain name dramatic expansion that I have a lot of concern about what impact that's gonna have and a lot of questions for what the need for it is. But as much as we dislike some of the things they do, I think it's much better than having an organization where countries that have a very powerful desire to control what their citizens have access to can influence the Internet. I'll look into his comment and see what I can take from that. But I do share his concern.

Brian Fung covers technology for The Washington Post, focusing on telecommunications and the Internet. Before joining the Post, he was the technology correspondent for National Journal and an associate editor at the Atlantic.



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