With the convening of the 114th Congress on January 6 came the prospects for a productive legislative session on several issues related to records management and information governance practices, including reforming the Freedom of Information Act (FOIA), ending patent infringement litigation abuses, providing a legal safe harbor for cyberthreat information sharing, and preventing misappropriation of trade secrets.
Now that Congressional control is no longer split between the two major parties, which contributed to legislative gridlock as they were unable to find common ground on a host of key issues, more legislation is expected to make it to the president’s desk, raising the political stakes over controversial measures. But the prospects for compromise will also increase as both sides seek to show that they can govern. This may produce legislative action in a number of important issues being tracked by ARMA International, as discussed below.
Incoming House Oversight and Government Reform Committee Chairman Jason
Chaffetz (R-Utah) said he plans to revive efforts to enact FOIA reform legislation. Both the House and Senate overwhelmingly approved separate legislation (H.R. 1211 and S. 2520) aimed at easing public requests for information from the executive branch, but Congress adjourned before reconciling the measures.
According to a Dec. 16, 2014, report in the Washington Post, some lawmakers balked at the popular measure because the Justice Department and other agencies were concerned about a provision that would lead to increased lawsuits. This provision would require agencies to identify a “foreseeable harm” before denying FOIA requests they deem executive privilege and sensitive to the decision-making process.
Patent Infringement Abuse
In the area of patent infringement litigation, a comprehensive bill to address abuses by so-called “patent trolls” stalled in the Senate last year. Speaking at the U.S. Chamber of Commerce’s Intellectual Property Summit in Washington, D.C., on Nov. 18, House Judiciary Chairman Robert Goodlatte (R-Va.) said patent litigation abuse legislation will be introduced early in 2015. He said he intends to work closely with incoming Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Senate Majority Leader Mitch McConnell (R-Ky.) to see patent legislation signed into law.
Cyberthreat Liability Protection
Large businesses also will be seeking renewed support in Congress for legislation to provide liability protection for cyberthreat data sharing and to shield firms from federal antitrust enforcement actions when they have shared cyberthreat information with competitors. Legislation (H.R. 624) to provide such protection passed the House in 2013, but it stalled in the Senate over the objections of privacy groups. However, the recent hacking attack against Sony Pictures is seen as a game-changing event that will significantly increase the likelihood of legislative action in 2015.
House Homeland Security Committee Chairman Michael McCaul (R-Texas) issued a statement saying that cybersecurity will be a top focus for his panel in the next Congress. House Energy and Commerce Committee Chairman Fred Upton (R-Mi.) announced that his panel will hold a series of hearings throughout the coming year to examine threats posed by cybercrime to electronic commerce and the overall American economy. And Sen. John McCain (R-Ariz.), who is expected to become chairman of the Senate Armed Services Committee in the next Congress, said his committee will focus on enhances oversight of programs, operations, and activities related to cybersecurity matters.
Trade Secret Protection
High on Congressional Republicans’ innovation agenda is legislation to create a federal private right of action for misappropriation of trade secrets. Two such bills were considered in the House and Senate last year, but they did not advance beyond committee consideration.
The Trade Secrets Protection Act (H.R. 5233) was favorably reported by the House Judiciary Committee on Sept. 17, and the Defend Trade Secrets Act (S. 2267) was introduced April 29. Both bills sought to amend the Electronic Espionage Act to allow a trade secret owner to seek injunctive relief and monetary damages, as well as allow a plaintiff to seek an ex parte order authorizing the seizure of any property that was used to help facilitate the commission of the misappropriation.
One issue that is expected to get little traction this Congress is consumer privacy. With the exception of legislation to harmonize a patchwork of state data breach notification statutes, the broader business community is expected to continue opposing efforts to expand consumer privacy regulation, including the president’s proposed “privacy bill of rights” for consumers.