Trump Administration More Likely to Have Role on Cybersecurity Policymaking Than IP
The incoming administration of President-elect Donald Trump is likely to have more influence in shaping policymaking on cybersecurity than IP, at least in the first stages of the 115th Congress, industry executives and lobbyists said in interviews Wednesday. Republicans retained slightly narrowed majorities in both houses (see 1611090001 and 1611090032). The Republicans’ retention of both houses of Congress likely means a continuation of key committees’ overall policy stances on both policy areas, lobbyists said. Several cybersecurity and IP-focused Republican lawmakers seen as vulnerable ahead of the election ultimately won or were leading in the returns at our deadline.
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Senate Intelligence Committee Chairman Richard Burr, R-N.C., and Senate Homeland Security Committee Chairman Ron Johnson, R-Wis., won re-election despite strong challenges that led many cybersecurity stakeholders to view the two races as marquee contests. Burr led Democratic challenger Deborah Ross 51-45 percent with 99 percent of votes tallied. Johnson led former Sen. Russ Feingold, D-Wis., 50-47 percent with 95 percent of votes counted. House Oversight IT Subcommittee Chairman Will Hurd, R-Texas, won re-election in the state’s 23rd district, edging out former Rep. Pete Gallego, D-Texas, 49-47 percent.
The race between House IP Subcommittee Chairman Darrell Issa, R-Calif., and Democratic challenger Doug Applegate wasn't called by major news outlets. Issa was leading Applegate 51-49 with 100 percent of the vote counted. IP lawyers and lobbyists considered the Issa-Applegate contest as the biggest contested congressional race for IP policy matters because of Issa’s limited leadership role in shaping IP policy (see 1611070058). House Judiciary Committee Chairman Bob Goodlatte, R-Va., wrested control of copyright policymaking away from House IP after the 2014 election and made it a bailiwick of the full committee (see 1412040068 and 1412050057).
Trump 'Hands Off' on IP
It’s likely that the Trump administration will take a “hands off approach” to IP policy and will allow the House and Senate Judiciary committees “take the lead” on IP issues, said Digital Media Association General Counsel Greg Barnes. Trump’s campaign stayed largely silent on IP issues, only mentioning the need to force China to uphold IP laws and “stop their unfair and unlawful practice of forcing U.S. companies to share proprietary technology with Chinese competitors as a condition of entry to China's market” (see 1606290080 and 1607220052).
The incoming president is likely to allow House and Senate Judiciary to lead on IP policymaking at least in the short term, but the incoming administration’s long-term influence on those issues will depend on Trump’s other priorities, said music industry attorney Chris Castle. Trump “is probably the first president since [Ronald] Reagan who has firsthand knowledge of the need to protect content creators’ rights,” Castle said. “There’s a chance that Trump could end up being good for artists’ rights” given perceptions that he will be less friendly to Google and others in the tech sector than President Barack Obama’s administration has been, “but most of the action will be in Congress.”
The lack of "change in the balance of power” in Congress “should indicate a continuation of the status quo on IP policymaking,” Barnes told us. “I have no reason to suspect otherwise.” Sustained Republican control of the Judiciary committees means there “probably won’t be any change in how they handle copyright issues,” Castle said. Barnes said he will be following whether incoming Rep.-elect Ro Khanna, D-Calif., will join House Judiciary given his past experience on patent issues. Khanna defeated Rep. Mike Honda, D-Calif., 60-40 percent in the Silicon Valley-based 17th district.
'Collaborative' Cybersecurity Approach
The existing “broad consensus” on the U.S. cybersecurity policy approach -- particularly the focus on public-private partnerships -- will likely continue even in the incoming Trump administration, said Internet Security Alliance President Larry Clinton. Congress' Homeland Security and Intelligence committees likely will continue tailoring their cybersecurity legislation to fit the consensus policy approach, but “I wouldn’t say it’s going to be status quo,” Clinton told us. Both Trump and Congress “have made it clear that cybersecurity continues to be a top policy priority,” said Norma Krayem, Holland & Knight cybersecurity policy expert.
Congress and the Trump administration appear likely to take a “collaborative approach” on cybersecurity policymaking, Krayem told us: “This hasn’t been a partisan issue and certainly Obama has worked closely with the Republican majority in Congress on these issues so I don’t see that changing” with the shift to a Trump administration. A unified government structure and “particularly with the disruptive force like Trump, I’d imagine we could see a much more aggressive approach to addressing some cybersecurity issues that we haven’t seen previously,” ISA's Clinton said. Trump promised in October that his administration will conduct a full review of U.S. cyber defenses, including those protecting critical infrastructure. He also said he will direct the DOJ to create joint task forces throughout the U.S. to coordinate local, state, federal and international cybercrime responses (see 1610030025).
Trump’s increased focus on combating cybercrime would be a departure from the Obama administration, which mainly focused on critical infrastructure cybersecurity, ISA's Clinton said. “There’s been comparatively little attention paid to cybercrime issues … and we have seen a comparative pittance from law enforcement agencies to address this,” Clinton said: “I think [the DOJ-led task forces] could lead to opening a new front” to combat cybercrime. The Trump administration likely also will intensify the push to streamline cybersecurity regulations, which is critical given the proliferation of similar but “unique” approaches to addressing cybersecurity despite “no empirical evidence” that multiple duplicative regulations are effective, Clinton said.
The next administration’s focus on reviewing U.S. cyber defenses may also result in a re-evaluation on international cybersecurity norms and critical infrastructure protection, Krayem said. Issues like IoT cybersecurity and state-sponsored cyberattacks are likely to play a bigger role in policymaking in the 115th Congress, Krayem said. “People haven’t dug as much into those issues” and members of Congress will need to educate themselves on those issues in the near future, she said. Krayem and other cybersecurity stakeholders have said they believe IoT cybersecurity will get substantial attention from Congress next year, particularly in the wake of the October distributed denial of service attacks against DynDNS (see 1610260067).