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Presidential politics and internet issues in the 2000 election

Ubiquity, Volume 2000 Issue October, October 1 - October 31, 2000 | BY Doug Isenberg 

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What are the candidates' positions on Internet taxes, online privacy, free speech and intellectual property law?



You certainly can't vote in this year's presidential election online, Internet coverage of the Democratic and Republic conventions was largely a bust, and -- despite what you may have heard -- neither of the two major party candidates (or any other politician, for that matter) invented the Internet. So, why should you, the technologically savviest of all voters, even bother to cast a ballot next month? And, if you do, for whom should you vote? The answer to the first question, of course, is simple: Every vote counts, and this may turn out to be one of the closest presidential elections in decades. Regardless of whether you care about the political issues of technology, Generation "E" -- which has the best communication tools at its disposal -- has an obligation to communicate its voice at the polls.

But the answer to the second question -- who to vote for -- is impossible to know.

The answer is impossible for two reasons: First, like all politicians, this year's presidential candidates are largely saying things that are intended to appeal to the largest number of voters, so uncovering their real position on any issue -- let alone nontraditional issues such as Internet taxes, privacy, free speech in cyberspace and intellectual property -- is difficult to do. Second, even when a candidate is clear on an Internet issue, it is not necessarily clear whether that position makes him more or less attractive to voters who care about the future of the Internet. Just as it is wrong to categorize all people who belong to a particular gender, religion or race as united on any issue, so, too, it is wrong to assume that all netizens favor a particular tech-related position.

Then, there are those who say that the future of the Internet, and the Internet economy, does not depend on whether it's Al Gore or George W. Bush who gets elected. These pundits argue that entrepreneurship, not the government, has brought us to where we are today and that the man who sits in the Oval Office will make little difference. While that may be true, it's still important to know, before that man takes his seat, exactly where he stands.

Early in the primary election season, the one Internet political issue that the candidates focused on was taxes, specifically, what to do about sales taxes for goods purchased over the Internet. Sen. John McCain criticized Bush early on for not joining him in calling for a permanent ban on Internet taxes. Bush did endorse a five-year extension of the temporary Internet Tax Freedom Act, but his tax talk has largely focused more on cutting income taxes and the "marriage penalty" rather than how to treat e-commerce taxes. Likewise, Gore has stopped short of endorsing a permanent ban but favors the extension and has also called for a worldwide duty-free zone in cyberspace for international e-commerce.

So, what's an Internet-intelligent voter to make of the tax issue? On the one hand, limiting or eliminating online taxes could certainly increase e-commerce sales, but doesn't the Internet offer enough advantages (including convenience and selection) that e-commerce will prosper regardless? And don't forget the true cost of crippling the sales tax base: Those proceeds are used for many important purposes at the local level. On another issue, online privacy, Gore seized hold early, calling for an "electronic bill of rights" in May 1998 that would protect the disclosure of personal information, which admittedly is threatened by the Internet. His running mate, Joe Lieberman, has been criticized for his stance, following the Oklahoma City bombing, in favor of giving law enforcement increased electronic surveillance tools -- supposedly a threat to privacy. The Bush campaign has been quieter about this issue, and although it's not entirely fair to criticize a governor for everything that occurs in his state, it's worth noting that the well-established Privacy Journal ranked Texas last in its most recent survey of how well states protect personal privacy.

It's difficult to see how privacy, like any Internet issue, will influence the election. If the choice is between increased protection from invasions of privacy or increased protection from violent crime (assuming "anti-privacy" laws would do so), surely even the most technologically devoted will have a lot to think about before casting a vote.

On free speech and the Internet, both political camps have taken the politically correct stance, speaking out against violence and pornography and the effect on children who spend an increasing amount of time -- often unsupervised -- online. The Democratic ticket has called for a "cease-fire" in marketing adult material to children and vowed it would seek "tougher measures to hold the industry accountable" if necessary, though it's hard to imagine how such tougher measures could comply with the First Amendment. Lieberman's role as the moral standard-bearer is well known (and, according to the polls, apparently well received), and he was a co-sponsor of the "v-chip" legislation for television controls in 1995. The Republican ticket has criticized Gore as a hypocrite for his stance on Hollywood violence, in light of contributions he has received from the entertainment industry.

The real issue when examining what type of content is permissible on the Internet, though, is what effect a Gore or Bush administration would have on the Supreme Court. The reason: Ultimately it's not new laws alone that shape this issue but how (or whether) the courts square them with the First Amendment. With two to four appointments likely on the Court in the next four years, the future of the land's final arbiters of justice has been called one of the most important (if not overlooked) issues in this year's presidential election. It's unlikely that the landmark decision favoring free speech on the Internet, Reno v. ACLU, is in trouble; after all, the vote was 9-0. But any winds of change always start slowly.

It's likely, of course, that Bush would seek to appoint conservative justices to the Court (who, theoretically, might favor laws that limit speech on the Internet), while Gore would appoint liberal justices (who might rule against such laws). But predicting how a particular Supreme Court nominee might vote on a particular issue is both dangerous and, as we have seen, sometimes a crapshoot.

On intellectual property laws -- including the well-publicized Napster case -- it's hard to know where the candidates stand. Shortly after his selection as Bush's running mate, Dick Cheney was asked on a Sunday morning talk show what he thought of Napster's legal woes, and Cheney candidly admitted that he had no idea. Gore has said he wants to "crack down on foreign piracy of U.S. intellectual property" -- an admirable agenda item -- but I suspect many of Napster's users 20 million users are here in the United States.

While the Napster case has consequences that could affect the future of many forms of digital distribution and thus the economy as a whole, it's actually comforting to know that candidates for the highest elected offices in the land aren't spending their time worrying about Metallica's MP3 files. Besides, U.S. intellectual property laws are well established and will be shaped most likely by the Congress and the courts, not by the White House.

On other issues, too, the candidates are united: Both favor efforts to repair the digital divide, provide computers for students, increase the number of visas available for high-tech workers and build up the role of government services on the Internet. And each side has its fair share of high-profile technology executives: Michael Dell and Jim Barksdale line up with Bush; while Marc Andreesen and Reed Hundt line up with Gore. The differences between the two major party candidates on Internet issues, therefore, do not appear to be terribly significant. In my view, the future of the Supreme Court is the most important Internet issue in this campaign, but to others whose values and livelihoods may be different, the issues will, of course, be different. Regardless, one thing is clear: The next president of the United States could have a greater effect on shaping the future governance of the Internet and the high-tech economy than anyone else. So, pull yourself away from your broadband connection for a short while on November 7 and cast your ballot -- even if it's on an outdated punch card.




Doug Isenberg, an attorney, is the editor and publisher of GigaLaw.com ( http://www.GigaLaw.com), a provider of legal information for Internet professionals. GigaLaw.com offers daily news, substantive articles, book reviews, discussion forums and more on such Internet law issues as online copyright infringement, domain name disputes, privacy, Internet patents, antitrust, software licensing, trade secrets, free speech in cyberspace and much more. E-mail: disenberg@GigaLaw.com.

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