A public update on important Internet policy issues from our Policy Director. For more detailed information, consider joining i2Coalition.
COVID-19 relief efforts accelerated dramatically in Washington this past month by officials in the Trump Administration, the U.S. Congress and state and local governments to support health care providers and help the ill, mitigate the spread of the virus and stem the economic devastation it has imposed. As of mid-April, 42 states and the District of Columbia issued statewide stay-at-home/shelter in place orders, and 3 states and Puerto Rico had partial stay-at-home orders. In areas with stay-at-home orders, only “essential businesses” are open, with others shuttered indefinitely. Schools, universities, and colleges have moved to online learning, with many having decided to operate virtually for the remainder of the school year. Numerous primary elections were postponed in the states, although Wisconsin held its primary using “social distancing” voting procedures that are being closely assessed post-primary.
By the end of March Congress and the President worked together to enact three major economic relief bills. The third measure – the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) signed into law on March 27 – is the largest emergency stimulus relief package in U.S. history. A key support mechanism in the CARES Act – the $350B “Payroll Protection Program” for small businesses – was quickly depleted by April 15. Congress and the White House acknowledge that more must be done to stabilize the economy. Negotiations are continuing among Republicans and Democrats and the White House even as Congress plans to stay in recess until May 4.
In the coming weeks federal, state and local governments expect to provide details on when and how communities and the economy will “reopen.” To date, many draft plans in the states and the federal guidelines call for phased resumption of economic, educational and social activities. Citizens are coming to grips with the likelihood that for the foreseeable future – until widespread testing and therapeutics exist, and perhaps until a COVID-19 vaccine is available – they must adapt to a “new normal” that continues some forms of social distancing and other limitations to mitigate spread of COVID-19 and prevent massive new outbreaks.
Action on tech sector legislation and policies not related to defeating COVID-19 and economic recovery (Section 230, DMCA modernization, etc.) has largely ground to a halt in Washington. As the nation struggles with the pandemic, several major themes have emerged for the tech sector:
- The Internet is resilient in this crisis.
- Technology solutions will help reopen the economy and support public health safety.
- As in other crises, technology can be abused by bad actors to spread online COVID-19 fraud and other abuses.
- As businesses and schools are being conducted online nationwide during the COVID-19 pandemic, the digital divide and the need to deploy more high-speed broadband access in underserved and rural areas become more apparent.
Economic Stimulus Legislation Enacted. Congress and the Administration have enacted three major economic stimulus measures since the onslaught of the pandemic. The first bill (H.R. 6074) enacted on March 6 provided $8.3 billion in COVID-19 response funding. The second bill (H.R. 6201) enacted on March 18 included expanded leave, food assistance, and unemployment insurance.
The third measure, the CARES Act (H.R. 748) signed into law by President Trump on March 27 following Senate passage 96-0 and House voice vote approval, is a massive $2.2 trillion emergency funding package that addresses six key areas: (1) recovery checks to individuals and families; (2) expanded unemployment benefits, and loan relief for workers; (3) small business relief, including the $350B Payroll Protection Program for businesses with 500 employees or fewer); (4) Health care system support; (5) Relief for states, municipalities and businesses; and (6) emergency supplemental appropriations for government agencies and programs.
Additional Economic Stimulus & Congressional Spring/Summer Agenda. In the short term, Congress and the White House are working on an additional measure (dubbed “CV3.5”) to add $250B more to the Payroll Protection Plan (PPP) for small businesses whose initial funding ran out on April 15. Absent this additional funding, banks and the Small Business Administration will be unable to approve more of the PPP loans designed to avert layoffs during the coronavirus pandemic, which loans can be forgiven if businesses agree to maintain their payrolls.
Next, in late spring and summer, Congress and the Administration expect to work on a fourth major economic recovery and “jobs” bill focused primarily on “infrastructure,” including broadband and transportation. Sens. Cassidy (R-LA) and Menendez (D-NJ) are proposing a $500 billion fund for state and local governments as part of the next relief package, to aid parts of the country hurt from the pandemic. The fund would be divided into three equal tranches. The first would be allocated to states and territories according to their percentage of population. All states and DC would receive at least $1.25 billion from this fund. Cities and counties with populations above 50,000 would also be eligible for aid. The second and third tranches would be allocated according to a state’s share of the U.S. infection rate and loss of revenue funding resulting from shut-downs and stay-at-home orders.
Congress will also conduct oversight of the three enacted recovery measures and consider “must-do” appropriations bills for FY21. Congress will likely launch hearings to examine how and why the COVID-19 crisis exploded upon the world scene, with focus on China’s role in COVID-19 spread and possibly some of the policy issues and challenges that gained urgency during the pandemic (e.g., PPE supply chains problems, privacy, surveillance, cybersecurity, health care costs, antitrust).
Reopening the Economy. The Trump Administration is intensely focused on reopening the U.S. economy and getting people back to work as quickly as possible, subject to avoiding new COVID-19 outbreaks that would jeopardize public health safety and force a new round of shutdowns. In one month of coronavirus-related shutdowns, the total number of people seeking unemployment benefits reached 22 million.
On April 16, President Trump released federal guidelines (“Opening Up America Again” ) for a three-phase process. The federal guidelines place the onus on governors to make their own decisions about lifting their stay-at-home orders based on data about the scope of the COVID-19 outbreak in their states. Some people would be able to return to workplaces gradually under the guidelines, but the plan also continues to encourage telework during Phases 1 and 2. Some state governors in several major regions of the country (East Coast, West Coast, Midwest) are forming coalitions for consulting with each other on coronavirus guidelines for re-opening their economies. President Trump announced the formation of advisory groups made up of business and other leaders to help chart a path back to reopening the economy following the coronavirus. See the list here.
Many lawmakers from both parties as well as top business executives reportedly have advised President Trump that testing for coronavirus as well as contact tracing need to be expanded in order to reopen the government and workplaces. Some experts have urged an increase in testing to millions of tests per week. On April 15, Senators Schumer, Durbin (D-IL), Murray (D-WA), and Stabenow (D-MI) laid out the Democratic testing agenda including a white paper by Sen. Murray outlining their proposal to ramp up COVID-19 testing. The plan calls for $30 billion to increase testing in the U.S., which they argue is behind other developed nations.
WHO and China. On April 14 at the White House coronavirus daily briefing, President Trump announced that he is temporarily halting funding of the World Health Organization while the Administration investigates the organization and its response to the coronavirus. The President believes that the WHO is “China-centric” and that its guidance to not halt flights from China caused greater spread of the disease.
House Speaker Pelosi Forms Coronavirus Committee. Speaker Pelosi has formed a dedicated coronavirus select committee, led by Majority Whip Jim Clyburn (D-SC). The bipartisan panel will be tasked with examining all aspects of the federal response to coronavirus to ensure transparency, accountability, and oversight. She said that this is not intended to be an investigation into the administration, and she hopes that Republicans will be willing to participate. The Membership of the select committee has not been announced yet and Republicans have already pushed back on the idea.
Technology & COVID-19:
Contact-Tracing: Google/Apple. On Friday April 10, Apple and Google announced that they are working together on a major effort to help public health officials trace coronavirus exposure risks. The companies are planning to make technology available to verified public health officials by mid-May that would use Bluetooth on people’s phones to detect when people have come into contact with individuals diagnosed with the virus. The feature would be designed to work with apps by public health authorities on devices that run iOS and Android, which are used on about 99 percent of smartphones. Data would be automatically deleted after 14 days to protect user privacy.
Contact-Tracing: EU. The European Parliament will call on the European Commission and EU national governments to be transparent about how contact tracing apps work, according to a draft resolution. The text urges Brussels and capitals to be “fully transparent on the functioning of contact tracing apps, so that people can verify both the underlying protocol for security and privacy, and check the code itself to see whether the application functions as the authorities are claiming.” The resolution, prepared by leaders of the European People’s Party, Socialists & Democrats, Renew Europe and the Greens, outlines Parliament’s position on “EU coordinated action to combat the COVID-19 pandemic and its consequences.” The Parliament’s main political groups also recommend sunset clauses for those tracing apps, which should respect the General Data Protection Regulation and the e-privacy directive, and be voluntary. The resolution also calls on social media platforms to “proactively” combat disinformation and hate speech related to the coronavirus.
OSTP Super Computing Initiative. The White House Office of Science and Technology Policy (OSTP), the Department of Energy and 16 supercomputing systems/companies including Microsoft, IBM, Amazon, and Google announced on March 22 an initiative that will allow the government to tap into supercomputing power for coronavirus-related research.
NIST/OSTP Search Engine Program. The National Institute of Standards and Technology and the White House Office of Science and Technology Policy launched a joint effort to support the development of search engines for research that will help in the fight against COVID-19. The team will apply the successful, long-running program of expert engagement and technology assessment called the Text Retrieval Conference, or TREC, to the COVID-19 Open Research Dataset (CORD-19), a resource of more than 44,000 research articles and related data about COVID-19 and the coronavirus family of viruses. The TREC-COVID program goals include creating datasets and using an independent assessment process that will help search engine developers to evaluate and optimize their systems in meeting the needs of the research and health-care communities.
New IRS Portal. The IRS has launched a second portal to help consumers better access their economic impact payments. The Get My Payment portal will allow taxpayers to give the agency direct deposit information for their bank accounts if they didn’t include it on their 2018 or 2019 returns. The new portal also allows people to track the status of their payments. The web tool launched earlier is still open to allow people who didn’t file returns in 2018 or 2019 to provide basic personal information to the agency in order to receive their payments.
DNS Fraud & Abuse. A broad cross-section of 40 consumer, technology, cybersecurity and healthcare organizations wrote to Vice President Pence on April 9 to offer recommendations for protecting consumers from COVID-19 healthcare and financial fraud and disinformation. The letter cited data sourced from Interisle that of the more than 100,000 website domain names registered in the past few weeks containing terms like “covid’ and “corona,” that most “have been found to be downright dangerous.” The letter warned that “illegal actors are not confined to a single domain name or search term” and that “illegal activity is occurring across various online marketplaces and social media platforms.”
In addition to seeking the launch of targeted public service messaging campaigns and strengthened law enforcement, the group’s recommendations include calling for government to “[a]ddress systemic, structural internet policy problems that enable COVID-19 scams online,” most especially an alleged “complete lack of domain name registrar accountability.” The letter asks “government leaders to require – not ask – for registrars to do more against online scams,” as follows:
(1) Require transparency to stop internet fraud at a scale by mandating that registrars validate domain name registration information and make registration data accessible (i.e., WHOIS, citing the Rep. Latta (R-OH) February 2020 House Resolution calling for action); and
(2) Stop companies from profiting from domains used for public health scams by requiring U.S.-based domain name registrars to immediately lock and suspend any domain name used to facilitate coronavirus and other public health scams.
Additionally, three Democrat U.S. Senators (Hirono, Booker and Hassan) sent letters on April 13 to a group of domain name registrars seeking assurances that the companies are taking proper actions to reduce and combat COVID-19- related DNS fraud and abuses.
COVID-19 & Social Media: Reuters Institute Study. The U.S. The House Energy and Commerce Committee posted a link to a report by the Reuters Institute for the Study of Journalism stating that roughly one in three people across the United States, Spain, Germany, United Kingdom, Argentina and South Korea say they’ve seen false or misleading information on social media linked to the coronavirus.
Major tech companies continue to face accusations that they are not doing enough to remove online falsehoods and other digital content that may put people’s lives at risk. These efforts to crack down have yet to eliminate all such material from social media, according to the Oxford University academics who polled more than 8,500 people, collectively, across the six countries during the final week of March and first days of April.
- The highest levels of misinformation on social media were reported in Spain and Argentina where more than 40 percent of those polled in each country said they had seen some form of falsehood on the platforms, compared to just 28 percent of people in Germany.
- In the U.K., that figure stood at 38 percent of those surveyed, while in the U.S., 33 percent said they had seen “a lot” or “a great deal” of false or misleading information on the digital platforms.
- The U.S. also showed the greatest levels of polarization among those polled, with people favoring left-leaning political views showing a greater confidence in traditional media outlets and those with right-leaning political views believing the national government was a more credible source of news, according to the Reuters Institute report.
Privacy: “Big Data” Senate Commerce Committee Hearing. On April 9 the Senate Commerce Committee launched a “paper hearing” titled “Enlisting Big Data in the Fight Against Coronavirus” to examine recent uses of aggregate and anonymized consumer data to identify potential hotspots of coronavirus transmission and to help accelerate the development of treatments. The committee also sought input on how consumers’ privacy rights are being protected and what the U.S. government plans to do with COVID-related data collected at the end of this national emergency.
The committee gave witnesses 96 business hours to respond to a wide range of questions from Senators. Opening statements, testimony, questions and answers have been posted to the Senate Commerce Committee website for public review. Witnesses included academics, privacy advocates and tech industry and advertising representatives. The witnesses generally agreed that individual privacy concerns raised by the use of “big data” during this pandemic (especially precise location data generated by consumer mobile devices) highlight the need for a baseline federal consumer privacy law that enhances trust and provides both legal protections for individuals and much-needed legal clarity for companies to be able to respond quickly and understand what kinds of data can be shared legally and ethically to support public health efforts. In their answers, many witnesses offered ways that individual privacy protections and aggregate, anonymized data collection can coexist to provide immense value to our public health system and to the economy and help save lives.
Privacy: California CCPA Delay Sought. The Association of National Advertisers, representing among others Facebook and Google, asked the California AG to delay enforcement of the California Consumer Protection Act so they can focus on the novel coronavirus pandemic. The proposed regulation for enforcing the law starts July 1, 2020. At this time, it appears that AG Becerra remains committed to enforcing the law starting July 1st.
Zoom Concerns. Due to the uptick in the use of the video conferencing website, a number of state AGs are looking into the company’s privacy and security practices. There have been instances of “Zoom-bombing” where hackers are able to enter otherwise private teleconferences. Connecticut Attorney General Tong is leading the charge. The FBI has also sent out warnings about the potential privacy flaws of the Zoom system. Sen. Richard Blumenthal (D-CT) sent a letter to the company on the privacy issue and has said that he is considering legislation to ensure video conferencing services are providing sufficient protections of users’ privacy and security. Speaker Pelosi called California-based Zoom a “Chinese entity” and said that Congress needs to take that into consideration when deciding how to legislate remotely. A staffer said Pelosi’s comments were in reference to criticism and security concerns stemming from the company routing large numbers of their calls through China. U.S. senators have been warned in an internal memo that Zoom poses a high risk to privacy and security, while companies like Google and SpaceX have banned their staff from using the technology. EU officials are being told to avoid the Zoom conferencing platform over privacy and security concerns.
Essential Worker “Bill of Rights.” Sen. Elizabeth Warren (D-MA) and Rep. Ro Khanna (D-CA) introduced a bill of rights for essential workers. These rights include: 1) Health and safety protections; 2) Robust premium compensation; 3) Protections for collective bargaining agreements; 4) Universal paid sick and family leave; 5) Protections for whistleblowers; 6) An end to worker misclassification; 7) Health care security; 8) Support for child care; 9) Treat workers as experts; and 10) Hold corporations accountable for meeting their responsibilities.
Workforce for Online Food Ordering Apps. Sen. Elizabeth Warren (D-MA) sent letters to food delivery services, DoorDash, Grubhub, Uber Eats and Instacart, urging them to classify their workers as full-time employees so that the companies can grant them more labor protections, such as paid sick leave, during the coronavirus pandemic.
Antitrust: Price Gouging. Shortly after Congress resumes, the House Antitrust Subcommittee plans to focus on issues related to price gouging in the wake of the COVID-19 pandemic. The committee will be paying particular attention to the recently introduced legislation H.R. 6472, COVID-19 Price Gouging Prevention Act (H.R. 6472). Democratic leaders of the House Energy and Commerce and Judiciary Committees introduced the bill (Reps. Pallone (NJ), Schakowsky (IL), Nadler (NY), and Cicilline (RI), which would prohibit the sale of consumer goods and services at an unconscionably excessive price during the public health emergency declared as a result of the COVID-19 pandemic. Senators Klobuchar (D-MN) and Tillis (R-NC) have also introduced price gouging measures.
Pallone Broadband Legislation. Energy and Commerce Committee Chairman Frank Pallone is reportedly working on a $2 billion emergency broadband benefit bill. Pallone’s draft somewhat mirrors House Democrats’ proposal for emergency Lifeline funding included in their H.R. 6379, Take Responsibility for Workers and Families Act, which they floated during talks on the CARES Act. Pallone’s proposal, like H.R. 6379, would allocate money to a proposed U.S. Treasury-administered Emergency Broadband Connectivity Fund. The FCC would reimburse ISPs for service provided to qualifying households. The funding would be used to support service only during pandemic-related emergency periods.
Rural Broadband Legislation. Reps. Sam Graves (R-MO) and John Katko (R-NY) introduced H.R. 6491. The bill would clarify that distressed communities that form public-private partnerships will be eligible for Economic Development Administration grants to support broadband projects.
FCC: Chairman Pai’s Letter to Congress). On March 15, FCC Chairman Ajit Pai sent a letter to congressional appropriators seeking $50 million to implement this “off-campus connectivity pilot” aimed at expanding federal subsidies for wireless devices used outside of schools. He also requested $200 million for a telehealth pilot program. Pai’s letter also asks for $65 million to fund broadband data mapping efforts and $2 billion to help small U.S. carriers replace gear made by Huawei and ZTE. While those funding requests are less directly tied to the coronavirus pandemic and follow two recently enacted laws on those matters, Pai said they’ve taken on new urgency amid a national emergency. Congressional Members may want more to address the digital divide, with Sen. Cory Booker advocating for $1 billion to support expanding federal Wi-Fi hotspots and other Democratic Senators asking for dedicated funding to close the homework gap.
FCC Waives Lifeline Requirements. On March 17, the FCC waived the Lifeline program’s recertification and reverification requirements for participating low-income consumers for 60 days. The Bureau also waives for 60 days the 2019 Lifeline Order’s requirement that participating carriers’ enrollment representatives register with the Lifeline program administrator, the Universal Service Administrative Company. These changes will ease burdens on Lifeline subscribers during the coronavirus pandemic and allow Lifeline carriers to focus their efforts on assisting customers.
Lifeline Letter. Roughly 250 organizations sent a letter to the FCC urging them to expand the Lifeline program amid increasing reliance on the internet during the pandemic. The groups, including Common Sense, Access Now and MediaJustice, say that low-income patients have been “coming in person” to medical clinics, rather than calling ahead “because they could not afford to use voice minutes.”
FCC E-Rate and Rural Health Care. The FCC waived the E-Rate and Rural Health Care program gift rules, which will help allow schools, libraries, and health care providers to more easily access broadband devices, WiFi hotspots, and other important equipment to connect people for work, school, and health care.
Keep Americans Connected Pledge During the Coronavirus Crisis. The FCC also created the “Keep Americans Connected” pledge, asking signers to commit to: 1) not terminate service to any residential or small business customers because of their inability to pay their bills due to the disruptions caused by the coronavirus pandemic; 2) waive any late fees that any residential or small business customers incur because of their economic circumstances related to the coronavirus pandemic; and 3) open its Wi-Fi hotspots to any American who needs them. So far, 390 companies and trade associations have signed on to the pledge.
PTO Oversight. The House IP subcommittee is expected to conduct oversight of the U.S. PTO after any immediate COVID-19 price gouging matters are examined. In particular, Members are expected to focus on recent changes by Dir. Iancu with respect to PTO filing deadlines as well as the merits behind the introduction of legislation that seeks to change the duration of patent rights related to the COVID-19 healthcare emergency.
PTO Request for Comments on AI. Last year, the U.S. Patent & Trademark Office issued two separate requests for comments to determine if updates to the patenting process (84 FR 44889) or copyright law (84 FR 58141) were warranted as a result of the advent of artificial intelligence. The PTO published both sets of responses. The patent-related responses can be viewed by clicking on the following link. The copyright-related responses can be found here.
Supply Chain/China Threats
China Telecom. The DOJ and other federal agencies called on the FCC to revoke the authorization of China Telecom Corp. to provide international telecommunications services to and from the United States. The group argued that China Telecom, the U.S. subsidiary of China’s state-owned telecommunications company, made inaccurate statements to federal authorities about where it stored its U.S. records, misrepresented its cybersecurity practices and is positioned to help Beijing engage in malicious digital activity, such as economic espionage or misrouting U.S. communications.
White House Telecom Foreign Participation Assessment Committee. On April 4, President Trump signed an order creating a “Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector.” The committee would, upon FCC referral, vet potential risks in FCC license applicants and recommend whether the commission should dismiss, deny, condition or revoke licenses on national security grounds. It would submit those recommendations through the Commerce Department’s National Telecommunications and Information Administration. This is another effort to hinder Huawei and ZTE from participating in U.S. telecommunications networks at any level.
Chips. According to reports, Senior officials in the Trump administration agreed to new measures to restrict the global supply of sophisticated chips to Huawei. The changes would require foreign companies that use U.S. chip-making equipment to obtain an American license before they can supply certain chips to the Chinese company.
Trade/Tariffs. Late Friday March 20, the USTR opened a docket to invite comments on possible modifications to the list of products from China subject to Section 301 tariffs. The submissions are limited to products relevant to the medical response to the coronavirus. And the process is designed to supplement, not replace, existing exclusion procedures. The President has kept the tariff levels for all other products, despite calls from diverse groups such as the US Chamber of Commerce and Democrats on the House Ways and Means Committee who have requested that he do so to blunt the economic impact of the coronavirus.
FCC Telehealth Applications. The FCC began accepting applications for its telehealth program which will provide $200 million in funding to help health care providers provide connected care services to patients at their homes or mobile locations. For more information and guidance, visit here.
Broadband Data Maps Law Enacted. On March 22, S. 1822 the Broadband Deployment Accuracy and Technological Availability (DATA) Act, was signed into law. The legislation will improve the accuracy of the FCC’s broadband availability maps by strengthening the process by which broadband data is collected. This new law requires the FCC to update its flawed maps to help deploy service to the estimated 20 million Americans without access to broadband.
Update on European Internet Policy
As many see the potential of contact tracing apps as a way to stop viral spread, there has also been concern around data protection and privacy. The EU Commission has published a toolbox and a data protection guide on apps – in the hope that the Member States will follow suit. Read more about this and more European Internet policy news on “The View from Brussels” from our partners at eco:https://international.eco.de/news/the-view-from-brussels-119/