Tech issues don’t move the needle in national elections like yesterday’s, but below I’ll make some general observations, followed by a few on winners and losers in issue areas I cover.

All in all, I think it’s a good election result.

We’re back to divided government. The acute tension between the Republican House and Democratic Senate and president is likely to produce fiscal rectitude, and only legislation on which there is something close to true national consensus will pass.

Neither the Republicans nor the Tea Party movement were awarded any kind of sweeping victory, so they are unlikely to overplay their hands or take public support for granted. They must work to advance their aims by persuading more Americans that their philosophies and leadership are meritorious.

Democrats should, of course, be chastened. They’re rightly paying the price for the careless, go-for-broke strategy they used in the 111th Congress, to pass their sprawling, intrusive health care regulation, for example.

Here’s to at least two years of welcome gridlock.

Now, there were some notable losses among tech-focused representatives. The most worrisome loss is Senator Russ Feingold (D-WI), who has been a consistent and persistent overseer and skeptic of the growing surveillance state. I don’t see anyone to step up and take his place. Privacy lost big in the Wisconsin election.

I’m bucking consensus on the loss of Rick Boucher (D-VA) in the House, at least as far as privacy goes. (On copyright and some telecom issues, I’ll take Mike Masnick’s word.) Boucher is a nice guy and a careful legislator, but his popularity among the Washington, D.C. tech lobby, I think, was a product of lobby-legislator symbiosis, not his actual backing for the interests of tech innovators.

For at least a decade, Boucher has been an advocate of “baseline privacy legislation” that never actually had a serious chance of passing. The result was that tech lobbyists could always report to the home office that they had something to do, and tech trade associations could garner corporate support for all those noon-time strategy meetings over sandwiches—without generating a true threat to the business models of the companies they (purport to) represent.

My point is not that Boucher should have advanced his privacy legislation—it’s not going to be federal law that delivers privacy. I’m just not unhappy that he’s gone. (Not that far gone. Watch for him to take a job somewhere in the D.C. tech lobby. Knowing nothing about his plans, I’d give it a greater than 50% chance.)

The tech lobby will actually have some work to do under Boucher’s likely successor in the role of Democratic tech/consumer protection leader. Ed Markey (D-MA) is a partisan and an ideologue who will actually require the tech lobby to defend itself. He’s canny enough to have decent influence even from his perch in the minority.

UPDATE w/additional thought: Democrat Richard Blumenthal, elected to the Senate from Connecticut, is a technophobe demagogue—or plays one on TV, which is what matters. He went to war against Craigslist to boost his campaign, and his win is a notable loss for tech and free speech.

But—really—the fate of our privacy, the fate of our tech sector, and the fate of our country and society shouldn’t turn on elections. We are not defined by these people, who go to Washington, D.C. to sit atop the coercive authority machine for a while. Elections come and go. I’ll continue to work on returning power to civil society where it belongs.

Two privacy bills are already up for consideration. And at yesterday’s Senate Commerce hearing on Consumer Online Privacy, we heard Senator Kerry announce that he will be working on new legislation to regulate online privacy.  While we wait to see what Kerry will offer, NetChoice has concerns over the bills we do know about:  Rep. Rush’s “Best Practices Act” and the Boucher/Stearns Discussion Draft. Our side-by-side comparison identifies four concerns:

• Both proposals would regulate small websites that don’t even collect PII. Boucher-Stearns would regulate a tiny online startup that is adding just 100 users a week, even where its users provide only a made-up user name and password. As defined, “covered information” would overly restrict the flow of useful information and harm the development of ad-supported content and services.
• Safe harbor? Hardly! A company could be torpedoed with lawsuits from enterprising trial lawyers just for sending marketing emails that were later found to be outside of the safe harbor, up to $1,000 per violation and uncapped punitive damages.
• Marketing and advertising have legitimate operational purposes. Additional consent should not be required when a business uses covered information to do follow-up marketing to customers with whom it has already established a business relationship. Congress has recognized this consumer expectation in past legislation, which is why it built important exceptions in the CAN-SPAM Act for “relationship messages” to contact customers in an existing business relationship.
• The FTC should enforce laws against unfair or deceptive practices, not micromanage self-regulatory efforts. As the overseer of the safe harbor program, the FTC will have broad powers to dictate the details of self-regulatory programs, effectively transforming the FTC into the port authority of the Internet.

We’re also worried about the Rush bill mandate requiring access to information. It broadly applies to covered or sensitive information about individuals “that may be used for purposes that could result in an adverse decision about an individual….”

More analysis to come.

I’m attending day 2 of the 2010 “State of the Net” conference today. CDT founder Jerry Berman kicked off the show and, echoing Ithiel de sola Pool, said that the Internet is a “technology of freedom” but that it needs stewardship and protection to thrive. He specifically mentioned how First Amendment protections were vital.

Jerry then introduced Rep. Rick Boucher of the House Commerce Committee and the Co-chair of the Congressional Internet Caucus. Here are some of the highlights:  [And you can follow my ongoing live Tweeting from the State of the Net conference @AdamThierer]

• “We have an active year ahead of us” in Congress
• Priority #1: Spectrum inventory legislation will help ensure more efficient use; will hopefully help America meet growing demand for wireless service
• Priority #2: Comprehensive reform of universal service fund; “current system is simply unsustainable”; “change must come and come soon”; people on both sides of the debate have now come to the table and agreed to work together;
• Heart of universal service reform = Competitive bidding; cap on high-cost fund; other steps to ensure efficiency; expanding  contribution base
• Key part of reform is move to expand fund to cover broadband service instead of just basic telephony; requirement that carriers use it for broadband
• Priority #3: Satellite Home Viewer Act renewal
• Priority #4: Privacy & online advertising bill… says he doesn’t want to derail targeted advertising but give people “greater control”; discussion draft coming soon
• Priority #5: cell phone bill w/ national consumer protection standards
• “an ambitious agenda” but he hopes it can all get done
• Hearing coming about FCC’s national broadband plan once it is out
• Feb. 4^th oversight hearing about the Comcast-NBC Universal deal (I’m testifying there!)