June/July 2023 US Policy Update
Few members of Congress understand innovation and American competitiveness better than Representative Anna Eshoo (D-CA). First elected to Congress in 1992, Representative Eshoo represents a large swath of Silicon Valley. Her work in Congress has focused on internet deployment, privacy, cybersecurity for small businesses, digital equity, and STEM education among many other areas. She has authored more than 50 bills that have been signed into law. As part of our Beltway Voices series we caught up with Representative Eshoo to discuss issues developers are tracking.
Software developers are a vocal and engaged group regarding tech policy. They participate in online campaigns and discussions at work and believe policymakers understand the tech industry. However, there’s a need to bridge gaps between policymakers and the tech industry and nurture developers’ growing interest in shaping technology-related policies. While most believe the government supports their interests, some feel that software associations should take the lead in regulating the industry. Nonetheless, developers value government tech policy and privacy regulations and are willing to collaborate with officials to improve technology-related policies.
The Developers Alliance released a statement following its submission to the National Telecommunications and Information Administration (NTIA) AI Accountability Policy request for comment.
As Bruce Gustafson, CEO of the Developers Alliance said:
“The AI ecosystem is a sprawling arena with many segments and firms. Each of these segments and firms are at various stages of their life cycles, and depend on countless stakeholders to ensure the products that are being created are safe and practical for the consumer. Policymakers in Washington must not levy knee jerk regulations that promise to stifle innovation, job creation, and national competitiveness. Knee jerk regulations would fall heaviest on small and yet to be conceived firms.
Stakeholders in the AI ecosystem have shown they can effectively create guardrails that both enable innovation and protect consumers. Policymakers should respect the work being carried out by these individuals and groups and act with regulatory humility. We’re hopeful that the accountability mechanisms being put in place in the AI ecosystem might serve as a template for additional self-regulation in other industries.”
The Developers Alliance released a statement following its submission to the United States Patent and Trademark Office (USPTO) request for comment on inter partes review.
Geoff Lane, Head of U.S. Policy for the Developers Alliance, put it this way:
“As the USPTO considers whether to make changes to IPR, it should keep in mind just how beneficial the program has been for developers and the firms that employ them. Those who have benefited most from it are small- and medium-sized firms that are the backbone of innovation and our economy. Any changes to this successful program will undoubtedly only end up strengthening the hand of NPEs. NPEs create nothing and are a drag on our economy. They sit on overly broad or expiring patents to extort honest innovators and companies. These extortions curb growth and our global competitiveness. The USPTO must keep IPR in place. IPR is an economical choice for many firms who otherwise would have to spend years and millions of dollars to navigate an intimidating court system.”
The Developers Alliance released a statement following its submission to the OSTP request for information on national priorities for AI.
Said Geoff Lane, Head of U.S. Policy for the Developers Alliance:
“As OSTP and other agencies begin to examine AI, we urge them to move with regulatory humility and a light touch in such a nascent market. Heavy-handed orders could harm consumers and give competitors abroad a leg up. U.S. policymakers must also defend against overreach from EU regulators who are embarking on an extraterritorial, disproportionate, and inconsistent approach to regulating this industry. These actions are a constant burden for businesses and consumers.
Developers are working hard to ensure AI is deployed in a safe and practical manner that benefits consumers, enables the future development of these important innovations, and keeps the United States globally competitive. It’s imperative that U.S. government agencies nurture our AI industry and protect it from overzealous government actors abroad.”
Developers Alliance Joins Coalition to Push for National, Preemptive Privacy Regulation
On July 12, the Developers Alliance, Capitol Hill staff, and representatives from 27 other organizations gathered to launch the United for Privacy campaign. The coalition is advocating that Congress pass a national, uniform, and preemptive privacy law. 46 states have either introduced or passed privacy legislation, creating a maze of laws that developers have to navigate. This patchwork is especially burdensome for small- and medium-sized firms which often do not have the legal resources to comply with countless privacy laws. As part of the launch, the coalition also sent a letter to lawmakers on Capitol Hill urging them to pass much needed legislation this Congress.
The U.S. and EU announced a new data transfer agreement on July 10th. EU officials have signaled that new U.S. data safeguards limiting U.S. intelligence services’ access to EU data, and the establishment of the Data Protection Review Court for Europeans were adequate steps for the deal to move forward. Companies must self-certify to participate in the framework. Those that participated in Privacy Shield will likely find it easy to transition to the new framework as long as they comply with the principles and update references in their privacy policies. Companies will need to self-certify or recertify annually.
Didier Reynders, EU justice chief said, “The principles of the data privacy framework are solid, and I am convinced that we have made significant progress which meets the requirements of the European Court of Justice case law. I am very confident of fighting, defending the new data agreement.” Privacy advocate Max Schrems indicated he’s ready to challenge the new agreement in court again. The European Data Protection Board scuttled the previous two U.S.-EU data transfer agreements after Schrems challenged both because of concerns about U.S. intelligence services’ access to European data.
The bill didn’t have much success last Congress. Enough lawmakers harbored concerns that it never came up for a floor vote in either the House of Representatives or Senate. We remain hopeful that it will experience a similar fate in this Congress. Frankly, the future of the app ecosystem is at risk. There are too many unresolved issues for the bill to be passed in Congress and signed into law. This bill would drive a stake through the heart of job creation, threaten national security, and greatly weaken consumer protection. Congress should turn its attention to more pressing matters.
A group of nearly 50 bipartisan members of the House of Representatives signed a letter addressed to President Biden raising their concerns with the extraterritoriality of some of the EU’s tech regulations. This letter urges the President to raise these concerns through the Trade and Technology Council (TTC) meetings with the EU. This development is significant in that it’s both a bipartisan exercise and signed by a number of senior members of the House of Representatives. It should be taken seriously by the President and his team at the White House, and we urge them to flag these concerns with their EU counterparts.
Secretary of Commerce Gina Raimondo announced on June 22 that the National Institute of Standards and Technology (NIST) would be launching a new public working group focused on generative AI. The working group will build upon the NIST AI Framework. In addition to helping address hurdles and opportunities related to code, text, images, videos, and music, the working group will develop guidance for NIST to help organizations address risks associated with generative AI.
Said NIST Director Laurie Locascio, “This new group is especially timely considering the unprecedented speed, scale and potential impact of generative AI and its potential to revolutionize many industries and society more broadly. We want to identify and develop tools to better understand and manage those risks, and we hope to attract broad participation in this new group.”
Bitter FTC Oversight Hearing Held in House Judiciary Committee
The House Judiciary Committee held an oversight hearing of the Federal Trade Commission on July 13. FTC Chair Lina Khan testified. The hearing was generally a partisan and, at times acrimonious, exercise. From the outset, Republicans used the hearing to raise a number of questions about Chair Khan personally, as well as the FTC’s agenda under her leadership. Among the topics raised by Republicans were privacy, competition legislation, the FTC’s opposition to mergers, the GOP’s opposition to an increase in the FTC’s budget, Chair Khan’s refusal to recuse herself from some ongoing FTC deliberations, the FTC’s use of encrypted messaging apps, and others. Democrats, for the most part, defended the chair and the agency’s mission. We expect additional investigations and hearings into Chair Khan and the FTC this Congress.