The Fall 2021 US Developer Policy Update.
Competition
Following the release of a six-bill tech competition package by House Democrats, Republicans have come back with their answer to sticking it to big tech. The Republican proposal includes empowering courts and state attorneys general, stripping the FTC of its antitrust enforcement authority, and broadly focusing on rectifying their mistaken belief that tech companies are unfairly censoring conservative voices. Both Democratic and Republican proposals face uphill battles, especially given that neither bill has consensus within their respective parties.
In the battle between Facebook and the FTC, Facebook has made a second request for dismissal of the case. The court previously threw out the case against Facebook citing that the government had failed to provide enough facts to back up its claims against the tech company holding market dominance. Prior to the FTC filing their amended complaint, Facebook requested that FTC Chair Lina Khan recuse herself from the proceedings given her history of past public statements against the company. They cited court precedent of commissioners being recused for prejudgment; prejudgement in a case by a commission would deprive Facebook of proper Due Process rights under the Constitution. Tech giant Amazon has taken a similar position regarding Due Process rights, pushing for Khan’s recusal given her past public criticism of them as well.
Gaming Giant Epic has continued its assault on app stores with its latest antitrust lawsuits over app store fees. Google has shot back stating that the lawsuit is entirely meritless and neglects to acknowledge the safety and security features, as well as the choices that their platform brings to both developers and consumers alike. Developers Alliance has commented on Epic’s app store takedown initiatives in the past and find that Epic’s crusade against app stores is more self-serving than for the benefit of the broader developer community as they claim.
The Biden Administration released an Executive Order on competition, which encourages the FTC and the DOJ to update how they review mergers. The document includes recommendations that:
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Urges the Federal Trade Commission to “challenge prior bad mergers” that were deemed appropriate by past administrations
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Calls on the FTC to craft new rules on data collection and user surveillance practices, and asks the agency to prohibit certain unfair methods of competition on internet marketplaces.
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Pushes the FTC to ban occupational licensing restrictions, and encourages the FTC to ban or limit non-compete agreements
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Encourages the FCC to restore “net neutrality” rules that were undone during the Trump administration
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Establishes a “White House Competition Council” to lead federal responses to large corporations’ growing economic power
Privacy
The one unifying force for parties this month was that members joined together to express their aggrievement over data practices at the Protecting Kids Online: Testimony from a Facebook Whistleblower hearing put on by the Senate Committee on Commerce, Science, and Transportation. The hearing focused specifically on how the algorithms of tech companies negatively impact consumer behavior. Following the hearing the conversation turned to algorithmic accountability and whether developers and the companies they run should be held responsible for products that may cause a negative impact, specifically on young users. This conversation runs parallel to the broader discussion of Section 230 reform and whether platforms should be held responsible for moderation practices surrounding third-party content on their platforms.
The Senate has begun discussing federal privacy legislation. Senators Wicker (R-MS) and Blackburn (R-TN) introduced the SAFE DATA Act in late July. The bill “would provide Americans with more choice and control over their data and direct businesses to be more transparent and accountable for their data practices…and enhance the Federal Trade Commission’s (FTC) authority and provide additional resources to enforce the Act.”
Patents
The Patent and Trademark Office has filed a request for comments, due October 15th. They are seeking the public’s input on a study they are conducting on the current state of patent eligibility in the United States and the impact of patent eligibility on investment and innovation. Developers Alliance plans to file comments. We encourage all of our members and software developers to file on behalf of their organizations as well.
