Artificial Intelligence and Privacy “Remedies” Simmer While The Political Machine Heats Up

The February 2020 Developers Alliance US Policy Update.


In This Update

The US political world is in high gear. The Presidential Election is in full swing. The candidates are taking sides and declaring their position on nearly every technology issue. You can read our summaries of those here. New bills and revisions to generation-old policies are also being proposed from both the left and right as the parties try to make their mark and impress voters. 2020 is looking to keep us all very busy. 


Transparency Via Algorithm

In late December a draft privacy bill was floated around the House as the Energy and Commerce Committee requested feedback on its provisions. While many found that the draft bill did not go far enough to address consumer privacy concerns, tech-focused groups felt that many of the required disclosures under the draft bill could lead to proprietary information of companies’ practices being shared via disclosure requirements. This was specifically mentioned over calls for algorithmic transparency and decision making. Further, the issue of federal pre-emption has yet to be fleshed out amongst lawmakers, leading many to question if the proposed federal bill will even override the various state-level bills currently in existence.

Rep. Jan Schakowsky (D-IL.), chair of the Energy and Commerce subcommittee, indicated her intention to eventually merge many of the currently floating privacy bills, like those below, in order to create one comprehensive piece of legislation. 

What Is A Child Anyways?

Rep. Kathy Castor (D-FL) introduced a bill entitled Protecting the Information of our Vulnerable Children And Youth (PRIVACY) Act on January 30th. The bill seeks to implement sweeping updates to the 1998 Children’s Online Privacy Protection Act (COPPA). The bill differs from other similar bills reforming COPPA right now as it allows parents a legal right of action against children’s privacy violations. Similar to the bill put forth by Sens. Markey (D-MA) and Hawley (R-MS), it additionally expands the scope of definition for what is a ‘child,’ giving additional protections to teens.

Taking Private Right Of Action Further

Rep. Castor’s bill takes the private right of action slightly further that similar bills as parents may sue technology companies on their children’s behalf if their privacy is violated. Further, her bill would not allow targeted ads placed for children under age 13. Additionally, minors aged 13 to 17 will be given increased control over the usage and storage of their data.

The CCPA, despite being enacted the first of this year with enforcement to come beginning in July, is apparently a living document. The California Attorney General’s office this week released further edits to the bill. This week’s edits are hailed to be making the law more business-friendly and include guidance on IP address and other personal information that is collected, historical data, disclosure standards, and what certain buttons should look like on websites to be in compliance.

When In Doubt, Shuffle And Create Federal Agencies

Senator Hawley (R-MO) recently proposed that the Department of Justice absorb the Federal Trade Commission (FTC). This would impact the tech sector given that privacy currently falls under FTC regulation. The Senator’s proposal comes as he criticizes the current system for “(lacking) teeth” and being “woefully unaccountable.” The move would be in an effort to streamline and give the necessary attention to FTC antitrust and privacy enforcement mechanisms.

OK, OK, But Maybe Just One More Federal Agency?

On February 13th, Sen. Kirsten Gillibrand (D-NY) introduced The Data Protection Act of 2020. The bill would establish a Data Protection Agency, a “new federal agency with the authority to ensure businesses are transparent about data collection and the power to enforce violations.” This bill follows legislation by Reps. Anna Eshoo (D-CA) and Zoe Lofgren (D-CA), who proposed the Online Privacy Act of 2019 at the end of last year, calling for the creation of a brand new federal agency. The agency would be set up similar to that of the Consumer Financial Protection Bureau, however, would focus exclusively on imposing consumer privacy protections.

Supreme Court

Google v. Oracle Continues Marching Toward Its Final Bout

Oracle recently released its brief for its case against Google on API interoperability that is currently sitting in front of the U.S. Supreme Court. Upon the release of Oracle’s brief, a Google spokesperson stated that “Oracle’s position would undermine the practices that have helped developers build on existing technology and create new products.”

DOJ Amici FIled

The US Department of Justice filed an amici brief in support of Oracle in the case against Google pending at the Supreme Court. Much to Oracle’s chagrin, most of the tech industry has backed Google in the case.  It was reported that “just hours before the Trump administration filed a brief in favor of Oracle, Oracle co-founder and executive chairman Larry Ellison hosted a fundraiser for Trump at his golf course in California.” Developers Alliance filed an amicus brief on behalf of developers in support of Google. You can read our submission here. The Supreme Court hears oral arguments on the Google v. Oracle case on March 24th. A decision in the matter is expected to be released in the weeks following.

Artificial Intelligence 

AI In The Budget: Have We Tried Throwing Money At It?

White House budget proposes additional funding to AI and quantum computing. The budget will be taken into consideration by Congress for the coming year, however, the additional funding highlights the administration’s focus on the importance of these areas. But is the funding sufficient? Yet to be seen, however, given how much competing nations (ie: China) spend on these areas, it is likely that many industry experts will say the amount is still not enough to ensure US AI and quantum computing dominance.

Time To Lay An Innovation Pipeline

The House Committee on Small Business Subcommittee on Innovation and Workforce Development held a hearing entitled, “The Innovation Pipeline: From Universities to Small Businesses” on Tuesday, February 11, 2020. The hearing covered the “collaboration between small businesses and a large network of world-renowned research universities…licensing deals and tech transfers to patents and startups…(and) the innovation pipeline from universities to small businesses and the indispensable role of universities in economic development and urban revitalization.” Witnesses included various academics from university incubators and accelerators and discussed how federal funding could be most effective to help small businesses grow, particularly in rural America.

“AI Algorithms are like sewers — you get out of them what you put into them”

That’s a quote from Representative Foster (D-IL), made during the House Financial Services Committee hearing “Equitable Algorithms: Examining Ways to Reduce AI Bias in Financial Services,” held on February 12, 2020. In the hearing, members highlighted the importance of logging to test for code bias in the algorithms to ensure financial equality. Witnesses included a variety of academics from computer science departments, including a number of machine learning specialists.

Autonomous Vehicles, Yes, They’re AI Too

The House Committee on Energy & Commerce also held a hearing on February 11, 2020, entitled Autonomous Vehicles: Promises and Challenges of Evolving Automotive Technologies. Members discussed how autonomous vehicles were an important element in the tech race against China. While there was an acknowledgment of the current landscape of autonomous vehicles being an immediate accessibility aid for seniors in rural areas, the focus was more on the technology as a necessary economic investment to ensure long term success of the US economy. There was a heightened call to action for developers, stating that “the technology is only as reliable as its human developers,” and that we need the tech to be reliable for a safe deployment. Members of both parties continue to highlight that the last bill on AV was passed unanimously and how they would like to continue to do so again with another bill.

Facial Recognition

Cory Booker Asks For Facial Recognition Pause Until Ethics Can Be Established 

On February 12th, Sens. Cory Booker (D-NJ) and Jeff Merkley (D-OR) proposed the Ethical Use of Facial Recognition Act. The bill would create a “moratorium on the government use of facial recognition technology until a Commission recommends the appropriate guidelines and limitation for use of facial recognition technology.” Similar bipartisan bills have been introduced in the past, including one sponsored by Brian Schatz (D-HI) and Roy Blunt (R-Mo.) and another by Sens. Christopher Coons (D-DE) and Mike Lee (R-UT). While members generally acknowledge legislation targeting facial recognition is necessary, they are still assessing how to best approach regulating the technology.

Facebook Pays For Facial Recognition

On January 29th Facebook agreed to pay $550 million to settle a class-action lawsuit over its use of facial recognition technology. The lawsuit was related to violations in Illinois laws against biometric privacy. Facebook, while claiming the allegations have no merit, were accused of violations of the law for their facial tagging features and data storage policies of state residents with regards to user uploaded photos. 


DCMA Turns 20, May Get Revised Before Its Even Old Enough To Drink

The next bill with a target on it’s back is the Digital Millennium Copyright Act of 1998 (DCMA). Sen. Tillis (R-NC) announced his desire to rework the twenty-two-year-old bill. Tillis was quoted as stating, “I don’t know if we’re talking a lot about C
humbawamba…(but) almost every single thing about the internet has changed over the past 22 years, and the law simply hasn’t kept pace.” Details of a possible bill have not yet been released. The last time Congress attempted to enact copyright reform was in 2012 with SOPA/PIPA, which led to Wikipedia going dark, mass protests, and chaos erupting on the phone lines of all congressional offices. If they really want to go down that route again then I’ll be drinking a whiskey drink, vodka drink, lager drink, AND a cider drink.


Pentagon Sets AI Ethical Standards

The Pentagon has released ethical standards for use of AI in warfare. The standards are meant to provide broad guidance for machine learning technology used in and developed for warfare with the understanding that the sector is largely still evolving. The standards outlined focus on AI developments being responsible, equitable, traceable, reliable, and governable.

The JEDI Are Extinct…

Development in the defense community with regards to AI has recently stalled, as a federal judge put the Joint Enterprise Defense Infrastructure (JEDI) contract at the Department of Defense on hold. While the 10-year contract was awarded to Microsoft this past fall, courts are currently investigating claims made by Amazon of improper interference by the Trump Administration in denying the company the award following President Trump’s comments against Amazon CEO Jeff Bezos while they further investigate Amazon’s claims of unfair treatment by the Trump administration. The JEDI contract, worth $10 billion, would implement cloud computing solutions at the Department of Defense and give the department a much-needed update. 

Getting Political 

Twitter Wants To Do Some Public Good

Twitter‘s new policy on deepfakes goes into effect on March 5th. The platform noted that it will remove and/or label manipulated and inauthentic media, so as to encourage truthful dissemination of information for the public good. Twitter is further cracking down on what it deems inauthentic content given the increased paid political content given the US election year.

Voting Apps Are Having A Moment

The race to determine presidential candidates isn’t going smoothly for the developers behind the scenes. You may have heard, there was a bit of a hiccup with the Iowa Caucus results. In the wake of the Iowa situation, voting apps are getting much attention. 

While many are in great support of moving to an app-based system for voting, there remain many concerns. Advocates believe that eventually moving to a higher-tech system would promote voter accessibility, higher voter turnout, and address many of the voter identity verification issues. Concerns, however, lie with app vulnerabilities, including data collection and reliability, voter suppression, and privacy breaches (namely finding out how someone voted) by third parties. All the things you as a developer already knew would be issues from your experience developing for other industries or purposes.

Here is another thing you already know: Don’t launch an app when there are critical bugs (especially when the app itself is critical to democracy).  Of course, the question on all your minds is did they ACTUALLY test this thing? Well… POLITICO reports that DHS “had not vetted or tested the app.” Acting Homeland Security Secretary Chad Wolf said on Fox News that his department’s Cybersecurity and Infrastructure Security Agency offered to test the app “from a hacking perspective,” but “they declined.” I’ll leave that one without further commentary.

 “Section 230 – Nurturing Innovation or Fostering Unaccountability?”

On February 19th the Department of Justice held a workshop on Section 230 of the Communications Decency Act entitled “Section 230 – Nurturing Innovation or Fostering Unaccountability?”. The keynote for the event was Attorney General William Barr. During the workshop, Barr expressed strong opinions on 230 and how he believed the provision has allowed crimes on, and to be facilitated by, the internet. Barr and a few others speaking at the event indicated how they felt Section 230 had been interpreted overly broad, contrary to the original drafter’s intentions. Barr stated that platforms have invoked “immunity even where they solicited or encouraged unlawful conduct, shared in illegal proceeds or helped perpetrators hide from law enforcement.” 

Influencer Crackdown

The FTC is looking to revise its endorsement guidelines given the rise of social media advertising. They hope to, among other things, determine “whether changes in technology or the economy require changes to the Guides.” The FTC has long dealt with how to effectively police social media influencers, and have brought single-digit cases in the last few years. With the revision, the FTC hopes to crack down on the internet-famous folks peddling products for cash. Comments must be received by April 21, 2020.

Kickstarter Unionizes

Kickstarter employees, including many engineers and tech professionals, voted to unionize on February 18th. They are the first such organization of workers at a prominent tech company to do so and marks a significant step for workplace rights of white-co
llar workers.

TikTok Turnover 

TikTok again has avoided testifying on Capitol Hill, though this is not a major surprise given the number of staffing changes that have been taking place in their Washington, DC offices over the last few months. The company told lawmakers that it intends to sit down with them at a later date to discuss their concerns about the platform and their ties with China.

Facebook To Preserve The Sanctity Of Memes

Facebook recently decided that they won’t list memes that are sponsored by the Bloomberg presidential campaign as political ads, thus allowing sponsored content to be posted by influencers provided that they are identified as such. (Hopefully, the Fyre Festival folks can work wonders on campaigns, too).

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By Sarah Richard

Developers Alliance Policy Counsel & Head of US Policy

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