The September 2022 US Policy Update
Developers Alliance Releases Statement on Federal Trade Commission Advance Notice of Proposed Rulemaking
The Federal Trade Commission has requested the public’s input on data collection, use, and security. We are anxious to participate in this exercise if for no other reason than pushing back against the FTC’s premise that data is inherently bad. Almost all of the nearly 100 questions outlined in the notice portray data collection, transit, storage, and use as harmful to consumers. We’re strong advocates for the industry believing it creates jobs and benefits consumers. We also believe that the vast majority of devs are good data stewards, protecting their consumers’ data while in use, in transit, and at rest. We look forward to weighing in with the FTC soon.
“We look forward to weighing in with the FTC on this important topic. App developers –by nature –are excellent data stewards. Because their livelihoods depend on consumer trust, developers go above and beyond to protect data in use, at rest, and in transit.
It is deeply concerning that the FTC’s starting position on the matter is ‘exploring rules to crack down on harmful commercial surveillance and lax data security.’ Data make our lives easier, healthier, and more convenient. We are anxious to share the views of developers with the FTC, and hope they will take into consideration their thoughts before levying harmful and redundant regulations.”
California is quickly becoming –if it isn’t already –the nation’s de facto tech regulator. It’s not feasible for devs to create products for some states and not others, so when a state like California enacts a major new regulation that could upend the ecosystem, devs effectively have to create a product that is flexible enough to comply with California regulations, even if it is being used in Texas or Delaware. Enter AB 2273, the California Age-Appropriate Design Code Act, which forces devs to act as gatekeepers. In their new role, devs would have to find avenues to prevent kids under the age of 17 from accessing content or tools that might harm them. We obviously support the goal at a very high level, but as written, the AB 2273 includes things like commenting systems, peer-to-peer communications, advertising, and data collection and sharing. The bill was signed into law on September 15, and we are very concerned that even while it targets operations in California, the new law could dampen innovation and economic growth around the country.
“The obvious unintended consequence is that companies will either need to implement a robust (no, you can’t take their word for it) age-gating and identity verification system so that you can keep adults and minors separate, or re-engineer your service to “prioritize the privacy, safety and well-being of children over commercial interests” (where ”children” means everyone unless you prove otherwise). This will be an industry-wide issue, and you can count on the 17 year olds to make the program a challenge. Think that through: you’ll need to robustly confirm the age, and consequently the identity of every one of your users in some verifiable way.”
California enacted another law that devs should be paying close attention to. Governor Newsom (D) signed into law AB 587 which would force devs to monitor speech on their platforms. This is the latest effort by statehouses to turn devs into speech police. The new law requires social media companies to file semiannual reports with the state attorney general that disclose their policies on combating hate speech, extremism, and disinformation. Here again, we agree with the goals of the law, but as written, it would turn devs into something they aren’t: cops.
“While not an apples to apples comparison, the California and Texas laws are pretty darn close. Developers didn’t sign up to walk a digital beat. No dev sets out to create a product that enables the worst of the worst, but calling on them to figure out ways to keep these sewer creatures at bay simply isn’t feasible. Forcing developers into some kind of oversight role means that they’ll spend more time scouring their platforms for bad actors instead of improving existing apps and creating new ones. It’s also debatable as to what constitutes hate speech and conservative censorship. Are developers the appropriate arbiters of these questions? If forced into this role, my money is the outcome looking more like Police Academy and less like RoboCop.”
President Joe Biden is expected to sign the long-awaited executive order on trans-Atlantic data transfers as early as next week. The EO is expected to calm European concerns over US surveillance practices. While specifics are still scarce, the EO is believed to include new legal protections for both citizens of the EU and US over how US national security agencies can use their data. After it is signed, the EO will have to be ratified by the European Commission, which could take months to accomplish. If the Commission does approve the White House’s proposal, it will likely face continued challenges in court. This will be the third attempt to safeguard the free flow of personal data between the US and EU from US spying.
Competition Legislation Remains Stalled in Congress
Congress was unable to come to an agreement on moving S. 2992, the American Innovation and Choice Act before its August recess, and it’s looking like that it won’t be able to do anything before lawmakers scatter for the 2022 midterm elections either. This is in large part because of the strong pushback from devs who did the work to understand the bill and how it would impact their business. Key undecided Senators, too, are beginning to realize that techlash is one thing when it comes to tweets and press releases, but quite another when the rubber meets the road with actual legislation. Legislation that could do irreparable harm to a key driver of the US economy. There is still a chance that the bill receives a vote during the lame duck session between the midterm elections in November and early January, but that is appearing less and less likely. The bill’s lead sponsor, Senator Amy Klobuchar (D-MN) has long said the bill had enough votes to be passed, it just needed to be scheduled for a floor vote. Her tune has changed somewhat, now only saying the bill isn’t dead.