As we approach the midway point of the summer, it is time to take stock of the legislation we have been tracking in Congress. In an era of unprecedented techlash, most of the legislation on our radar would harm developers and the products they are creating. While our industry is focused on the following legislation, the context surrounding these bills is worth mentioning. First, it is an election year, meaning there are just few weeks left in the Congressional calendar before lawmakers depart for home to campaign. Additionally, the following bills will have to compete for floor time in the House and Senate as Congress grapples with other pressing issues like gun legislation and women’s reproductive rights.
American Innovation and Choice Act (S. 2992)
The AIOC Act would be especially harmful to the developer ecosystem. While it may target Big Tech, the ripple effect would be felt by developers who depend on those platforms to build, market, and sell their products. The bill says platforms cannot “self-preference” their own products, services, or lines of business, and must invite competitors into each of the ecosystem elements. It also says platforms must provide interoperability and access to all their products and services (OS, store, devices, APIs, sensors, etc.) to anyone that wants them. The outcome for developers is an ecosystem in disarray as platforms lose the ability and incentive to manage ecosystems. It would fragment the market and force developers to bear the compliance burden; a tall order for small businesses which often do not have the scale to compete or attorneys at their fingertips.
While AIOC did pass in committee, it has recently come under fire from Senators on both the left and right for either not going far enough to protect consumers, or too far and harming free speech online. This legislation was introduced in October 2021, and is currently co-sponsored by 13 senators, split among Democrats and Republicans. Its outlook in this Congress is murky with its support being so fragile, but it may linger into 2023. You can read more on the topic here.
American Data Privacy and Protection Act (H.R. 8152)
Lawmakers in both the House and Senate have been working for years to put into place a privacy framework that would protect consumers without harming innovation. While the ADPPA is a step in the right direction, it still does not preempt all state privacy laws, and would expose developers to “sue and settle” trolls. By not preempting the entire patchwork of state privacy laws, developers will have to navigate a perilous landscape where certain data practices might be legal in one state and prohibited in another. What is more, because the bill includes a private right of action, individuals could file frivolous lawsuits which would harm the industry. You can read more about the ADPPA here.
The ADPPA was introduced earlier in June 2022, and currently has four cosponsors, evenly split among Democrats and Republicans. The legislation cleared a subcommittee hurdle on June 23 and will need to pass in the House Energy and Commerce Committee before it can be considered on the House floor. While there does appear to be support for the bill in the House, Senator Maria Cantwell (D-WA), who chairs the Senate Commerce, Science, and Transportation Committee has raised red flags, expressing concerns with the bill’s enforcement mechanisms. With collaboration among House and Senate leaders, this legislation could pass this Congress.
OMA could be called a distant cousin of the AIOC Act, with the biggest difference being that OMA only applies to app stores. This is concerning since the bill strikes straight at the heart of our industry. In short, the legislation tells app stores to open and lose the commercial basis for hosting an app store, or close completely to third-party developers. In our ecosystem app stores are vital to the success of the products developers create. Read more on OMA here.
Similar to the AIOC Act, this bill has bipartisan support; seven Republicans are cosponsoring it and six Democrats. While it has cleared a committee hurdle in the Senate, it is not clear if or when it will receive any floor time in the Senate. If Senate leadership decides to move a competition bill, it could merge AIOC and OMA and move a single package or move just one of AIOC or OMA.
Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act (S. 4309)
The ACCESS Act poses many security threats that could harm consumers and ultimately disrupt the app ecosystem. The bill would require platforms to maintain a set of third-party accessible interfaces for the transfer of user data to a user or competing platform. This would render end-to-end encryption meaningless. The bill would also require interoperability among competing companies based on non-discriminatory terms. While it may be intended to only apply to Big Tech, ours is an industry of incredible interconnectedness, and developers will surely feel the ripple effect of these mandates. Read more on the ACCESS Act here.
The ACCESS Act was introduced in May 2022, and currently has the support of five Democrats and two Republicans. The bill has not had a vote in committee, and currently is not scheduled for one. Given the short timeline between now and campaign season, it is unlikely that the bill will be considered by the Senate this Congress.
