The Developers Alliance November 2021 US Policy Update.
Starting With The Good News…
Congress passed an infrastructure deal that was signed into law. The bill promises to devote $65 Billion “to expand broadband in communities across the U.S., create more low-cost broadband service options, subsidize the cost of service for low-income households, and provide funding to address the digital equity and inclusion needs in our communities.” This historic funding effort bodes well for developers in all corners of the country and will be a major step to ensuring that the developer workforce is both competitive and well staffed for years to come. Developers Alliance released a statement on the bill’s passage here.
The FTC issued a ruling on healthcare apps and device companies. The ruling affirms that companies that hold information related to a user’s fertility, heart health, glucose levels and other health data must notify consumers in the event of a breach. This ruling pertains to companies that possess this data regardless of whether HIPAA applies to them or not.
House Republicans released a draft version of a proposal for the Control Our Data Act, a piece of legislation aimed at establishing a national privacy framework and enforcement mechanism. While discussions are still early, this piece of legislation is promising, particularly in light of the preemption provisions that would save developers from a patchwork of privacy legislation at the state level. Similar to the Senate’s SAFE DATA Act, this bill would prohibit a private right of action against technology companies for violations, addressing the industry concern of legislation allowing for excessive lawsuits. Both parties have discussed the potential establishment and funding of a Bureau of Consumer Privacy and Data Security in order to more effectively handle consumer issues related to these matters. Developers Alliance looks forward to watching this proposed bill and related legislation proceed and continuing conversations with lawmakers in the new year
Section 230 & Algorithmic Regulations
Section 230 continues to get increased attention on the Hill. Meta whistleblower Frances Haugen continued engagement with Congress by testifying in early December at the House Commerce Committee hearing entitled Holding Big Tech Accountable: Targeted Reforms to Tech’s Legal Immunity. This follows her Senate testimony in early October of this year. Expanding upon her comments made in the Senate, Haugen used her opportunity in front of the House panel to push for Congress to regulate what developers can and can’t place in the algorithms to run their apps and services. Congress has been weighing in recent weeks whether to revise the internet law that shields tech companies from liability for hosting third-party content.
A bipartisan group in the House has introduced a bill entitled the Filter Bubble Transparency Act, which seeks to regulate the algorithms that tech companies use to provide content to users. Rep. Buck (R – CO), one of the sponsors of the bill, stated that its intention was that “Consumers should have the option to engage with internet platforms without being manipulated by secret algorithms driven by user-specific data.” What this bill would look like for consumers upon execution, however, is something that remains to be seen given that the presentation of all content by platforms is presented by some form of algorithm. The bill as stated has exemptions for companies with fewer than 500 employees, companies under 1 million annual users, and companies with annual gross receipts lower than $50,000,000 in the last three years. While there has been proposed legislation on algorithmic regulation by Congress before, the renewed focus on negative impacts of certain algorithms by select platforms has led to increased scrutiny of the intentional and unintentional impacts of developer algorithms across the board.
The FTC, the Consumer Financial Protection Bureau and the North Carolina DOJ have announced they are looking into if and how tech companies use Section 230 to circumvent consumer and banking laws. Leaders from the organizations believed that, if true, it would have the impact of “undermining fair competition”.
The Senate introduced a bill that aims at stopping mergers by dominant online platforms. The bipartisan legislation titled The Platform Competition and Opportunity Act is designed to give antitrust enforcers stronger authority to stop acquisitions and shift the burden in merger enforcement to dominant platforms to demonstrate the merger is not anticompetitive. Developers greatly benefit from an acquisition model and thus take issue with the premise of this legislation. Further, there is significant concern about a decrease in investment in the tech sector if this bill were to move forward. Developers Alliance released a statement on the bill here.