Tech policy is that rarest of things in American politics: a subject that isn't on its face partisan. Party lines are generally no more than a rough guide to how votes on tech issues will turn out. That said, if Republicans indeed -- as is looking increasingly likely -- win back the Senate come Election Day, that change in power would shake up the landscape in all sorts of interesting and non-obvious ways. When it comes to tech policy it may well be a lively 114th Congress.
A Republican majority, say many observers, could mean near-instant movement on legislation aimed at so-called patent trolls who hold patents solely so they can sue potential infringers. Going after patent trolls is wildly popular on Capitol Hill; the House passed a troll-targeting bill by 325 to 91. But a Senate version of the bill was killed in late May, after Senate Majority Leader Reid Harry Reid (D-Nev.) refused to bring it up for a vote.
Why did Reid back off the patent troll bill? He was reportedly leaned on by opponents, chief among them trial attorneys who objected to provisions that would stick those who bring abusive lawsuits with the costs of the legal proceedings. But trial lawyers and Republicans traditionally go together like Mayor Bill de Blasio and groundhogs, and they'd likely hold less sway in a Congress where Sen. Mitch McConnell (R-Ky.) is majority leader.
"To the extent that the current leader is a obstacle to patent reform," says Michael Petricone, the senior vice president for government affairs for the Consumer Electronics Association, a Republican-handover "could make a difference." Reining in trolls is something that Congress and President Obama could quickly agree upon.
2. Net Neutrality
The red-hot center of the debate about whether Internet service providers should be able to slow or accelerate the speed at which consumers receive some Web content has been the Federal Communications Commission, not Capitol Hill. Congress, though, could step in -- and a Republican Congress likely would. How? The Gingrich-era Congressional Review Act gives Congress the power to erase specific agency rules. Indeed, after the FCC passed its first round of open Internet rules in 2010, the Republican-led House passed a Resolution of Disapproval, arguing that the agency should not weigh in on the issue at all. That bill petered out in the Democratic Senate. But odds are that a Republican Senate would move to invalidate any aggressive net neutrality rules the agency passes.
It is unclear when the FCC will act, but the calendar is important here. It's probably better for neutrality advocates all around if the rules get a chance to age in place before a new Republican Senate -- if there is one -- has time to start.
In the end, though, that might matter little. Obama could veto the bill, which he might, given his recent statements in California that he was committed to net neutrality. "Nothing," says Marvin Ammori, a lawyer and net neutrality advocate, "would make Obama happier and more popular than vetoing it."
Those who track the issue says that nothing much is likely to happen on copyright law in the next Congress -- no matter who controls the Senate. The tremendous pushback against the 2011 Stop Online Piracy Act (SOPA) in the House and the Protect Intellectual Property Act (PIPA) in the Senate seems to have chilled interest in passing new digital copyright rules, especially when the tech industry, a coveted political ally, has lobbied against any new rules.
But that's less true abroad. Obama has pushed for treaties, particularly the 12-country Trans-Pacific Partnership now being negotiated, that would have major new global copyright restrictions. Reid has stood like a brick wall between Obama and any new free-trade agreements, but if he's no longer majority leader come January, that wall will be somewhat lower. In a Republican Congress, says Dean Garfield, president and chief executive of the Information Technology Industry Council, treaty-enshrined copyright protection "will be a point of emphasis, and simply being a point of emphasis increases the likelihood that it will be accomplished."
4. Surveillance and digital privacy
In 2015, the reform of government surveillance programs likely won't need to beg for attention on Capitol Hill. In recent weeks, the USA Freedom Act, aimed at ending the bulk collection of metadata on Americans, has picked up widespread support. Since the revelations by ex-National Security Agency contractor Edward Snowden, "there has been bipartisan concern about privacy and the power of government," says Greg Nojeim, senior counsel at the Center for Democracy and Technology. That said, its advocates in Congress might be interested in making sure the bill passes during the post-election lame duck session to avoid rehashing the bill yet again in a newly-configured chamber.
There's another intriguing possibility: that a Republican Congress turns its gaze instead to Executive Order 1233. That tool empowers intelligence agencies to conduct surveillance at the direction of the president; though the order was first signed by President Ronald Reagan, Republicans might be eager to remove the power from Obama's hands.
Reform of the 1986 Election Communications Privacy Act will likely be in the spotlight, many say. Reform measures would strengthen protections for individuals' digital communications. Its passage hit a stumbling block recently with the Securities and Exchange Commission, which argued that it needs access to e-mails to investigate financial crimes, including insider trading. But Republicans may be less receptive to the argument that a federal agency -- particularly one charged with restraining Wall Street -- should have special investigative powers. That said, according to those who work on the issue, Congress always seems to find some reason not to modernize that nearly 30-year-old law.
In a Republican Congress, the starting point for the fight over immigration reform would likely be H-1B visas, one of the most broadly popular planks of the immigration debate. The tech industry has clamored for more high-tech workers to be allowed into the country, which Republicans may be eager to address.
That creates a tough spot for those in favor of more holistic U.S. immigration law reform, particularly if there's no movement on so-called family visas for relatives of current citizens. If such a narrowly carved bill passes, Democrats would have to make the call on whether it's worth holding out for overall reform. Those who closely watch the immigration reform debate say that there's little chance for that sort of micro-targeted bill to succeed. Others say that if such a bill did pass it would present Obama with a challenge. "It would be difficult to explain," says Phil Kerpen, president of the conservative group American Commitment, "why he'd veto something that he agrees is good policy."
And that, in fact, leads to one of the overarching lessons about what could be next for tech in a Republican Congress. Odds are that more tech bills would land on Obama's desk. The president has been fuzzy with his views on some of the particulars of various tech policy questions. So, at the very least, should Republicans indeed win back the Senate on Nov. 4, one effect is near certain: The American public would get a clearer sense of where Obama, widely considered history's most tech-friendly president on his own Election Day, actually stands on the day's most pressing tech issues.