‘I also don’t want to be the one, 10 years down the road, who presided over the end of the Fourth Amendment as we know it.’
When members of Congress talk about computers and the internet, the tech community has a tendency to throw up its collective hands in exasperation. Issues like cybersecurity and encryption are complicated—not impossibly so, but often requiring an expertise one doesn’t typically pick up along the path to the House of Representatives.
However, when Rep. Blake Farenthold (R-Texas) talks tech, even people on the other side of the political spectrum tend to perk up an ear. Elected to congress in 2010, the former conservative talk radio host isn’t just a card-carrying member of the Tea Party Caucus; he’s also a member of the Electronic Frontier Foundation, the nation’s preeminent internet freedom advocacy organization.
The Daily Dot spoke with Rep. Farenthold during the Republican National Convention in Cleveland about the importance letting people leave crappy Yelp reviews, helping his congressional colleges get less dumb on encryption, and why settling for Donald Trump is the GOP’s only hope.
This interview has been edited for length and clarity.
You come from a tech background, founding an internet company before getting into politics. What kind of insight does that give you when legislating around technology issues that, when you look around at some of your colleagues in Congress, you see lacking?
I think we got where we got with the internet because it’s very Wild West. It’s not very regulated. I’m a strong believer in [the philosophy of] “if it ain’t broke, don’t fix it.” You’ve got to find some pretty egregious cases to think that we need to jump in there and fix something. There are some out there, though.
One of them is [the issue of] strategic lawsuits against public participation—SLAPP lawsuits. It’s when you post a review on Yelp or Amazon. It’s a negative review, but it’s your truthful opinion, and they sue you to take it down. It ends up stifling free speech, and you don’t get accurate reviews of places.
I have legislation out there that says you can dismiss these suits early if a judge thinks there isn’t a good claim. That way, you don’t have to go through the expensive discovery and litigation process. It’s a rip cord to bail out on these suits early. It protects people who are posting reviews and the sites that are hosting them.
Are you seeing these types of lawsuits with an increasing frequency?
We’ve passed anti-SLAPP legislation in the state of Texas, but it’s a First Amendment issue, and a lot of these cases cross state lines. Working at the federal level seems appropriate. The internet is about more participation, not less.
Speaking of things that are relevant to Texas and the tech sector, you’ve done a bunch of work trying to tamp down on patent troll lawsuits. Texas is ground zero for predatory patent litigation. To listen to people in Congress talk about it, this seems like a fairly bipartisan issue; everybody hates patent trolls. If that’s the case, why is it so difficult to pass legislation stamping this out?
You’ve got Democrats funded by plaintiffs’ attorneys—that’s a historical stereotype. You’ve also got companies and organizations that say, “don’t mess with our patent law at all, we know what the rules are, and we don’t want you changing them.”
This is another example where we’ve got something that’s broke. You’ve got these patent trolls who go out and send anybody who is using Wi-Fi a letter saying “send us money or we’re going to sue you.” Whataburger is a restaurant chain in the South—best burgers around, in my opinion. They wanted to put in Wi-Fi and a patent troll said, “No, you’ve got to pay us X number of thousands of dollars, or we’re going to sue you.” Whataburger just decided not to put in Wi-Fi.
Texas is kind of ground zero. The Eastern District of Texas [of the United States District Court] is called the “rocket docket” for these patent cases and is considered to be very plaintiff-friendly. What we’re trying to do in the troll area is similar to what we’re trying to do with SLAPP. If it looks like you don’t have a meritorious case, you get it thrown out early before the costs run up. I think that ought to be a bipartisan issue; nobody should be using our court system to extort money. Our court system was designed for legitimate claims—not as a place to get your will done, not because you’re right, but because it’s too expensive to litigate it.
Both of those solutions seemed to be aimed at the judicial side of things—giving judges a little more autonomy as to what they can do. Is that generally a better way to deal with these issues than attempting to fix these problems on the regulatory side?
The laws, in and of themselves, are not bad. They’re well thought out and designed to protect intellectual property owners, in the case of patent trolls, and give people who are libeled or slandered redress, in the case of SLAPP suits. But the system is being exploited because it’s so expensive and time-consuming to litigate. We could change the laws, but we could potentially lose some of the patent protections. Or we could lose some of the ability to protect yourself from somebody who lies about you. What we need to do is fix it procedurally, so you can get frivolous claims dismissed quickly. In the case of patent trolls, we want your demand letters to show what specifically you claim [is] infringing—not just some broad, general letter. Tell me exactly what I’m doing and which patents I’m infringing on. That’s how you improve the process.
In trying to balance the ability of the Internet to innovate and also protect everyday people, that’s been a big debate over the FCC’s Open Internet order and net neutrality. You’ve been critical of the way the FCC has been implementing the policy.
Net neutrality is another issue where people need to show where the system is really broke. I don’t hear an outcry of people saying, “Oh my god, they’re throttling down my Netflix!” You just don’t hear that. I think net neutrality is a solution looking for a problem.
Have you seen, even among Democrats on the other side of the aisle, a difference in the way that people perceive technology and the internet as ones who have a strong background in this versus the ones who don’t?
I don think that there is so much as a partisan divide as there is a divide between tech-savvy and not tech-savvy. I have as many Democrat allies on things like patent trolls as I do Republican allies. I think a lot of these questions require a little more background in technology than the average person has.
To that effect, Rep. Michael McCaul (R-Texas) and Sen. Mark Warner (D-Va.) have proposed creating an “encryption commission.”
I support that. I generally don’t support studies like these because I think it’s a way of kicking the can down the road and actually not making a decision. But in this case, I don’t think there is enough knowledge of the issues in depth among any of my colleagues.
It’s emotional because you don’t want to be the one that said, “Well, I stopped the NSA from intercepting messages” and then there’s a terrorist attack. I have trouble with that. But I also don’t want to be the one, 10 years down the road, who presided over the end of the Fourth Amendment as we know it. These are aren’t issues that can be boiled down to a one-pager. There’s a lot more balancing. It’s not a clear-cut right or wrong.
With regard to that commission, there some criticism among some technologists and commentators that the technology is what it is and the math that it’s all based on can’t be legislated away. Trying to find some sort of compromise, some sort of golden key or a safe backdoor, which basically all experts in the space say is impossible, isn’t possible.
If some kind of golden key or safe backdoor even exists. I’m not sure you can do it. If you put backdoors [in encryption systems], they’re going to get put in everything. Do you really want your banking information exposed like that? If there’s a golden key, it’s going to become the most sought-after prize in hacking.
So you’re saying that there is some value in the commission as an educational opportunity for its members?
I have a technological background, and I’m not sure I entirely understand all the math behind it. You start getting into the blockchain, and I have to step back and read the Wikipedia page.
You recently proposed a bill that would strip the government clearance from people who mishandle classified information.
Forget the technology. We could have the greatest encryption technology in the world and somebody like Hillary Clinton sends it over an insecure network to a server in her garage and then to her cell phone—then we’re in trouble.
In a lot of ways, Hillary Clinton is the highest-profile example of a type of issue that is pretty common across government.
I think this is going to hurt Hillary Clinton politically because you don’t even have to be super tech-savvy to understand that email is not secure. The generation that she is appealing to, which is predominantly Democrat, grew up with computers and know the associated risk. They’re looking at Hillary Clinton and saying she’s, at best, an idiot and, at worst, criminally negligent.
There is something to be said that this, in a lot of ways, is a problem across government. You have former Secretary of State Colin Powell admitting he used private email while in office; you had Republicans in the Bush Administration using a private email server run by the Republican party. How do you get this to be standardized across government in a way that works best in terms of security and accessibility?
What’s interesting is, as a member of Congress, it’s against the law for me to use government email to discuss anything related to a campaign. So I have to have two emails. You’ve got to be real careful what email you’re sending about what. The laws are not necessarily keeping up with the technology.
I can’t use my house.gov email account to set up a press interview on campaign matters. The idea behind it is that I’d be using government resources to campaign. Come on, sending an email, that’s like $0.0001 marginal cost.
You’re tech guy and as a Texan, two constituencies that, inside of the Republican party, tend to lean toward a very libertarian ethos. You’ve endorsed Donald Trump. And, as a Republican, no matter who the specific nominee is, having Republicans appoint all the top government backing the party’s nominee is a strong incentive to toe the party line at the top of ticket. But, in a lot of ways, the areas in which Trump has diverged from Republican orthodoxy is by moving away from libertarianism. Is that troubling in what you see for the future of the Republican party?
People complain a lot about Donald Trump being an unconventional conservative. Yet for the six years I’ve been in Congress, and before that when I was doing talk radio, all the Republicans would say that we have to find a way to appeal to the old Reagan Democrats or to a younger demographic. Now Donald Trump is doing it, and the mainstream Republicans are complaining about it. If you’re going to broaden the base, you’ve got to be welcoming of the people who do that.
You’re not going to agree with any politician on 100 percent of the issues. If you’re at 80 percent, that’s who you need to vote for. I don’t agree with Donald Trump 100 percent, but I’m clearly closer to 80. And he’s got my vote.
I’m not going to be stupid like a lot of Republicans were under Mitt Romney and say he’s not good enough so I’m not going to vote for him. And then, all of a sudden, we’re stuck with Barack Obama. We say the same thing, that we can’t vote for Donald Trump because X, Y, and Z, and we’re going to be stuck with Hillary Clinton. I guarantee you, as a conservative Republican, libertarian, or anyone who understands technology, you’re going to be much happier with Donald Trump.
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