Looks like the scares are just beginning in the October 2019 US Policy recap.
Congress has until November 21 to pass another spending bill, but chances look slim. We’re watching the scramble as they try to avoid another government shutdown. Meanwhile, the drama surrounding the White House continues to build. The impeachment inquiry is ramping up as both sides continue to argue over the process. Over in the judicial branch, SCOTUS is in session for its new term, with a number of high-profile issues on the docket — no cases that would impact our space have currently been announced, however, see below as we are keeping our eyes out as the agenda unfolds.
In This Update
Intermediary Liability And Section 230
Freedom of Speech on the internet and fact-checking has been the talk of the town lately, with Section 230 of the Communications Decency Act (CDA) taking over the discussion and news cycles.
TLDR: Should platforms be responsible for the questionable content (and outright lies) sometimes found on them?
Facebook announced that while they will continue to moderate content, they won’t fact-check candidates and politicians. CEO Mark Zuckerberg stated “We don’t believe…that it’s an appropriate role for us to referee political debates and prevent a politician’s speech from reaching its audience and being subject to public debate and scrutiny. That’s why Facebook exempts politicians from our third-party fact-checking program.”
Zuckerberg also gave a widely watched speech on Facebook policies and freedom of speech at Georgetown University this month, which laid out much of their views on content moderation strategy. Civil rights leaders were quick to jump in rebutting that this is a civil rights issue, adding to the conversation that widespread disinformation is equally as damaging. Politicians, of course, are already stretching how far the ‘political speech should be protected even if it’s lies’ goes.
House Energy Puts Content Moderation Front And Center
The House Energy and Commerce subcommittees held a hearing on October 16th entitled “Fostering a Healthier Internet to Protect Consumers.” Numerous tech companies testified on the hearing regarding the content moderation practices of online platforms. The witness list included Steve Huffman, the Co-Founder & CEO of Reddit, Inc., Professor Danielle Keats Citron of Boston University School of Law, Corynne McSherr, Legal Director of the Electronic Frontier Foundation, Professor Hany Farid of University of California, Berkeley, Katherine Oyama, Global Head of Intellectual Property Policy at Google, Inc., and Gretchen S. Peters, Executive Director of the Alliance to Counter Crime Online.
In their written remarks, a Google representative said that platforms would “either not be able to filter content at all … or would over-filter content (including important cases of political speech),” if Section 230 were to cease to exist. The Reddit CEO stated Section 230 has incentivized “good faith attempts to mitigate the unavoidable downsides of free expression.”
Political Censorship Demands
Back in June, Sen. Josh Hawley (R-MO) introduced the Ending Support for Internet Censorship Act, which “removes the immunity big tech companies receive under Section 230 unless they submit to an external audit that proves by clear and convincing evidence that their algorithms and content-removal practices are politically neutral…legislation does not apply to small and medium-sized tech companies.” The bill and similar initiatives have gained more steam in recent days in light of the ongoing discussion of content moderation as both parties are seeking a resolution on the matter amid a flurry of unsavory videos going viral and bracing for the upcoming campaign season.
Other advocates for reform stated that Section 230 was already being stretched well beyond Congress’s original intent. They believe the law now serves “to immunize platforms from liability even though they knew about users’ illegal activity, deliberately refused to remove it, and ensured that those responsible for the illegality could not be identified.’’
It is further reported that Rep. David Cicilline (D-RI) is coming forth with proposed legislation in the near future to target big tech companies who are profiting off of knowingly false information being disseminated via online advertisements. He insists that Congress has a “responsibility to prohibit” big tech from these profits.
Stronger Patents, Weaker Software Businesses
The Developers Alliance has continued to meet with Senate staff of the committees and offices that are handling various pieces of legislation and draft legislation on patent reform to share the developer’s point of view and ensure that any changes to the Patent Act do not negatively impact developers. The STRONGER Patents Act of 2019 | H.R.3666 was referred to the Subcommittee on Courts, Intellectual Property, and the Internet on July 30th and has not seen action since.
Congress Wants To Be Useful
The Senate Judiciary Committee held a hearing on October 30th entitled Promoting the Useful Arts: How can Congress prevent the issuance of poor quality patents? to address questions regarding patent quality that have come up. The hearing included testimony from Drew Hirshfeld, the Commissioner of Patents at the United States Patent and Trademark Office, Professor R. Polk Wagner from the University of Pennsylvania Law School, Professor Melissa Feeney Wasserman from The University of Texas at Austin School of Law, Ms. Teresa Stanek Rea, Partner, and Vice-Chair of the Intellectual Property Group at Crowell & Moring LLP, and Professor Colleen V. Chien from the Santa Clara University School of Law.
Last month, Developers Alliance signed on to the United for Patent Reform letter to the bill’s sponsoring members expressing their concern over the STRONGER Patents Act, as we believe this bill could re-empower patent trolls and hurt the developer community.
Patent 101 For The Senate
Earlier this summer Sens. Tillis and Coons released a draft bill on reforms to Section 101 of the Patent Act. Over the last few months, various parties have had a chance to weigh in on the tightly-held draft legislation. Sponsoring members are reportedly continuing to revise their legislation following the hearing on September 11th. No formal release date for a draft bill has been set.
Data & Privacy
California’s Contentious Privacy Act Marches Toward Enforcement
California’s landmark privacy law, the California Consumer Privacy Protection Act (CCPA) recently gained additional amendments in an effort to ameliorate a number of concerns with the bill prior to enforcement efforts. The state law takes effect Jan. 1, 2020. California Attorney General Xavier Becerra, whose office is still writing the regulations, stated that his office does not plan to enforce it until July 1, 2020. We’ve already warned you that the CCPA rollout is going to be contentious, however, a new report found that firms may have to pay up to $55 billion in initial compliance costs as a result of the state’s new privacy bill.
Children’s Online Privacy Protection Act Rule Revision Extended
The FTC has extended the deadline to file comments for the COPPA rule revision to Dec 9. Developers Alliance intends to submit comments on behalf of the developer community.
Revisions to COPPA may affect many in the developer community, including those who do not design apps specifically for children. If your work is impacted by COPPA, we want to hear from you! Please reach out to Policy & Developer Relations Manager Sarah Richard using the form at the bottom of this page.
Privacy In The Affirmative
In April of this year, Rep. Suzan DelBene (D-WA) announced the Information Transparency and Personal Data Control Act. The bill “requires the Federal Trade Commission (FTC) to establish requirements for entities providing services to the public that collect, store, process, use, or otherwise control sensitive personal information. In the last month, it was reported that democratic support for DelBenes online privacy bill has grown. The FTC must require controllers of sensitive personal information to:
Provide consumers with privacy and data use policy.
Obtain affirmative consent to collect or use consumers’ sensitive data.
Obtain an annual privacy audit that evaluates the sufficiency of the controller’s data privacy and security controls.”
Data Ownership: Exploring Implications for Data Privacy Rights and Data Valuation
The Senate Committee on Banking, Housing, and Urban Affairs held a hearing on “Data Ownership: Exploring Implications for Data Privacy Rights and Data Valuation” on October 24. Witnesses included Jeffrey Ritter, Founding Chair, American Bar Association Committee on Cyberspace Law; External Lecturer, University of Oxford, Department of Computer Science (on research sabbatical); Chad Marlow, Senior Advocacy and Policy Counsel, American Civil Liberties Union; Will Rinehart, Director of Technology and Innovation Policy, American Action Forum; and Michelle Dennedy, Chief Executive Officer, DrumWave Inc..
Senators spent the hearing trying to find solutions to reigning in the data-for-profit model of tech companies that have beleaguered them for the last few years. As one witness attempted to explain the conundrum to them, “at a time when our existing laws at the federal level and in most states are wholly insufficient to ensure that individuals have control over protecting their personal information, the data as property model simply distracts us from pursuing meaningful privacy legislation.”
The hearing included a heated exchange between witnesses and Sen. Kennedy (R-LA); Kennedy is known in the Senate for holding strong views on individual rights to data ownership. The Senator is a cosponsor of the Own Your Data Act | S.806, which was introduced in March of this year.
Mind Your Own Business… Act
Sen. Ron Wyden (D-OR) proposed legislation on October 17th to bring more “meaningful punishments” for companies that violate people’s data privacy. The bill, entitled the ”Mind Your Own Business Act.” proposes larger fines, penalties, and potential jail time for affected CEOs. It also allows for state attorneys general to enforce the data privacy regulations, as well as private groups to sue companies on behalf of affected consumers. Wyden stated that “Mark Zuckerberg won’t take Americans’ privacy seriously unless he feels personal consequences… A slap on the wrist from the FTC won’t do the job.” The Act is meant as an update to Wyden’s Consumer Data Protection Act, which was proposed last November.
Surfs Up For Consumers
A hearing is expected in November for S.1116 – Balancing the Rights Of Web Surfers Equally and Responsibly Act of 2019. The bill, nicknamed The BROWSER Act, was initially proposed by Marsha Blackburn (R-TN) in April of this year and “requires communications and technology companies to provide users with clear and conspicuous notice of their privacy policies and the ability to opt-in to the collection of sensitive information and to opt-out of the collection of non-sensitive information. It also prohibits these companies from denying their services to users who refuse to waive their privacy rights, empowers the Federal Trade Commission to enforce these rules, and ensures we have a consistent national law regarding online privacy.”
Certify Your Cybersecurity… With The Government
Sen. Ed Markey (D-MA) and Rep. Ted Lieu (D-CA) introduced the “Cyber Shield Act of 2019” bill on October 22. The bill seeks to create a cybersecurity certification program where consumers will receive a “seal of approval” on more secure products within the Internet of Things space. The bill, meant to encourage manufacturers to stay current with good cybersecurity practices, includes establishing an “‘advisory committee’ comprised of cyber experts from government, industry, and academia to create ‘cyber benchmarks’ for internet-connected devices.”
Nevada Adds It’s Privacy Take
Nevada is the first state after California to pass privacy legislation. The law went into force in early October with the goal of preventing consumer data from being sold to third-parties without consumer consent. The bill amends its existing privacy law and requires that websites must provide a way for consumers (via a toll-free number or email) to submit an opt-out request. The law requires that websites must respond to the requests in no later than 90 days.
New York Expands Investigation
The Big Tech antitrust investigation has now expanded. New York Attorney General Letitia James stated that their “investigation now has the support of 47 attorneys general from around the nation, who are all concerned that Facebook may have put consumer data at risk, reduced the quality of consumers’ choices, and increased the price of advertising.”
Big Tech Antitrust Report Incoming
A final report on big tech antitrust breaches is expected to be in the hands of the House of Representatives Judiciary Committee by the “first part” of 2020. Rohit Chopra, Commissioner of the Federal Trade Commission (FTC) indicated that small fines and financial penalties will likely not sufficiently address FTC concerns about the power of big tech firms. There was an indication that the FTC will be further looking into how regulators should properly address breaches.
Oracle v. Google: Live At The Supreme Court?
The Department of Justice (DOJ) filed an Amicus Brief with the Supreme Court requesting that they not take up the pending Google v. Oracle case over whether certain application programming interfaces (APIs) are subject to copyright protection. DOJ cited that the “copyrightability question has already been resolved definitively – and that the Google case isn’t a good vehicle for the Supreme Court’s consideration of fair use.” A Google representative stated that “Letting the current ruling stand may help incumbents, but it would fail to recognize the importance of interoperability that has promoted competition and paved the way for new products and services.”
Deepfakes Are in Deep
S. 2065: Deepfake Report Act of 2019 passed the Senate on October 24, 2019, and now goes to the House for consideration. The chances of the bill being passed into law are low, but the whole point is to require the Secretary of Homeland Security to publish an annual report on the use of deepfake technology, which will lead to further discussion of how to police the emerging technology.
Microsoft Makes Defense Inroads
The Pentagon awarded the Joint Enterprise Defense Infrastructure, or JEDI, cloud contract to Microsoft this month, despite much speculation that the contract was going to Amazon Web Services (AWS). The $10 billion 10-year contract leaves Microsoft with the task of “storing massive amounts of sensitive military data and giving the U.S. military access to technologies like artificial intelligence.”
National Artificial Intelligence Framework In Development
Reps. Robin Kelly (D-IL) and Will Hurd (R-TX) announced that they are working with the Bipartisan Policy Center on a strategy and national framework for the use of AI in government and society as a whole.