The October 2020 Developers Alliance US Policy Update.
Section 230 Fate Still Debated
The Senate Commerce Committee subpoenaed the CEOs of Facebook, Google, and Twitter to discuss Section 230 (the legislation that protects platforms from liability for user created content). On October 28th they held the hearing, entitled “Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?” The hearing featured top tech CEOs from Twitter, Google, and Facebook. While Section 230 reform has been a bipartisan issue (albeit with differing ideas of what reform would look like), Democrats in attendance chastised the hearing being held for political purposes given how close it was to the election and President Trump’s interest in tech companies censoring his posts. Republicans used the hearing to focus on conservative bias in social media. Tech CEOs showed their support for reforms being made to Section 230, however, encouraging Congress to be restrained in altering or removing liability for tech companies due to unintended consequences across the industry.
Additionally, the Justice Department has released recent guidance on proposed reforms to Section 230 in light of the Trump Administration seeking to go after tech giants for user content policies.
Chairman Pai stated that the Federal Communications Commission will move forward on a rulemaking process that clarifies Section 230. The comments were notable given the question over whether the FCC had the legal authority to interpret the law. Some of the other commissioners have expressed disapproval of the FCC wading into rulemaking on Section 230 as they see involvement as pandering to President Trump’s crusade against the liability shield.
Sen. Rubio has proposed legislation entitled the Adversarial Platform Prevention Act (“APP Act”). The Act seeks to create “a set of data protection and censorship related standards and restrictions that must be met by high-risk foreign software in order to legally operate in the United States.” Under the proposed legislation, apps would be defined as high-risk pending on their country of origin. Further, it sets data and disclosure requirements on foreign-owned apps. Noncompliance would result in the loss of Section 230 protections. The Alliance supports the critical need for Section 230-like platform protection but agrees that revision may be needed in recognition of the internet’s evolution.
Fake News, Continued
On October 15, 2020, the House Permanent Select Committee on Intelligence held a hearing entitled Misinformation, Conspiracy Theories, and ‘Infodemics’: Stopping the Spread Online. The hearing, which featured testimony by media and information analysis experts, was run entirely by House Democrats as House Republicans refused to participate in the proceeding. The hearing featured much discussion on the QAnon conspiracy theory across social media platforms and the issues that similar disinformation poses. Of the many ideas mentioned during the hearing, the concept of a platform oversight entity was proposed.
The House Subcommittee On Antitrust released its report on big tech this month. Recommendations include “structural separations and prohibitions on certain dominant platforms from operating in adjacent lines of business; interoperability and data portability requirements; non-discrimination requirements and a ban on self-preferencing; and beefed up merger and monopolization enforcement, as well as better administration of antitrust laws.”
In their rebuttals, the industry, by and large, stated that consumers are in fact the beneficiaries of the structure of their platforms and that the tech industry in itself is a highly competitive environment.
The Epic Games and Google lawsuit is set to be scheduled for trial in 2021, with the presiding judge stating that “we do not need to drag this thing out.” Google has claimed that it requires until late 2022 to properly defend the lawsuit. The lawsuit stems from Google’s removal of Epic Games’ owned Fortnite from the Google Play Store following Epic’s violation of policies surrounding in-app purchases.
The Department of Justice in conjunction with 11 other states has filed a lawsuit against Google citing antitrust violations in their online search and advertising platforms. The lawsuit is moving forward without any Democratic attorneys general, despite the Administration’s wishes for a bipartisan lawsuit. Separately, a bipartisan group of 37 states is in the process of drafting a separate lawsuit over antitrust complaints regarding Google’s search engine. It is unclear how a possible Biden Administration would address the case and if other attorneys general would join the lawsuit.
There is speculation that the next Federal Trade Commission case on antitrust will be against Facebook following an FTC staff meeting earlier this month to recommend whether they should move forward with charges. FTC Commissioners expected to release a final decision in the coming weeks on whether or not they will pursue antitrust violations.
APIs At The Supreme Court
The Supreme Court heard oral arguments in the Google v. Oracle API case on October 7th. The case results determine the permissible use of APIs and whether copyright protections should apply. The Developers Alliance believes that the court ruling in favor of Oracle would severely negatively impact developers of all sizes, create a significant barrier to entry, and would harm open source projects moving forward. The Developers Alliance weighed in on the lawsuit with an amicus brief to SCOTUS and will be keeping an eye on the decision when released in the coming months.
Apps And Kids
The Kids Act of 2008 is getting a fresh look with the House of Representatives seeking to amend it with legislation that requires registered sex offenders to provide online and mobile identifiers to the Justice Department so that their social networks and mobile apps can be appropriately monitored.
What We Know About Down-Ballot Races And Tech Initiatives (So Far)
The tech world has been a major driving force for this election season, from platforms censoring candidates to registering over a million new voters. We may have a delay in results this year, but tech’s involvement with the ballot box is here to stay.
California passed the contentious Proposition 22, the initiative that allows tech platforms to qualify their gig workers as independent contractors instead of employees. The passing of the law was seen as a major victory for tech companies, who spent upwards of $200 million on the ballot initiative.
California additionally passed Proposition 24, a ballot initiative that expands the state’s already heightened privacy protection laws. The initiative, also known as the Consumer Privacy Rights Act, gives consumers the power to stop businesses from selling or sharing their personal information without explicit authorization, tightens restrictions around consumer data tracking, and creates a new state regulatory agency to enforce privacy policies. The passage of the ballot initiative is seen as a huge threat to the ad-tech space and small tech businesses if they do not evolve and meet the regulatory threshold accordingly. The law comes into enforcement in 2023. The Alliance supports strong privacy practices, but we’d prefer a single U.S. law rather than overlapping state-by-state rules. Our advice to devs for the future: expect to ask for explicit permission for user data, and prepare for contextual ads as an alternative to targeted advertising.
Massachusetts overwhelmingly passed its “Right to Repair” measure. The initiative allows car owners to access and share data from their vehicles that were previously only accessible by automakers. Opponents of the ballot question — most notably the auto industry— cited security concerns as repairs shops will gain vehicle data, that the data is not material to repairs of the vehicle, and that the ability of the customer to upload and download data from a vehicle opens vehicles up to malware, ransomware, and hacking.
The Trump administration has imposed new rules on visas, overhauling the H1-B process, and making it more difficult for foreign skilled workers to come to the US. The new rules are set to go into effect at the end of the year, however, numerous organizations have filed lawsuits against the Administration in light of this change. Tech companies across the industry have been vocally opposed to the measure as their companies are heavily reliant on H1-B visas to properly staff and retain talent for their companies. The Alliance has long advocated for immigration rules that allow those with scarce skills to immigrate to the U.S.
A bipartisan companion bill to the EARN IT Act was introduced in the House last month. Similar to its Senate counterpart, the bill seeks to create a back door for law enforcement while leaving technology companies liable for any CSAM that is shared on their platforms. Developers Alliance believes that mandating companies to have weak encryption is harmful to the overall ecosystem and can cause more abuses in the system than it helps.
Not The Year To Be Taxing The Good Wine
The French government plans to levy its proposed Digital Tax following the OECD being unable to strike a deal on taxation this year. The US government has been severely opposed to the tax as they believe it is unfairly discriminatory against American technology companies. In retribution, the USTR announced its intentions to instate a retaliatory tax on French goods in the United States. Bilateral tax agreements including any US retaliatory taxation policies moving forward regarding this are unclear given the ongoing US election.