Your brief update on important Internet policy issues
Biden Presidency & 117th Congress
Soon after his January 20 inauguration, President Biden focused on taking executive action on a number of priority issues and refining a strategy for gaining swift Congressional approval of his $1.9 trillion COVID-19 relief legislation (i.e., the “American Rescue Plan”). During its first full week in office, the Biden Administration dedicated each day to a different issue. Notably, the first was “Buy American” day when Biden signed an executive order directing agencies to strengthen requirements for acquiring goods and services from American businesses and workers, thereby making it harder for federal officials to obtain waivers to purchase products from overseas.
Getting the pandemic under control is priority one for the new Administration. President Biden made early efforts in Oval Office meetings to negotiate with some moderate Senate Republicans on the details of the $1.9 trillion COVID relief bill in an attempt to secure 60 votes in the Senate and avoid having to use the budget reconciliation process which only requires a simple majority vote. Those bipartisan talks produced little progress; some Republicans offered to consider a much smaller package ($600 billion). Consequently, Democrats in Congress intend to use their slim majority to approve the $1.9 trillion Biden package through the budget reconciliation process by March 14 when current federal unemployment benefits expire. Now that the second Trump impeachment trial has concluded in the Senate, the Biden Administration is moving on to promote other signature legislative proposals discussed in the Presidential campaign, such as immigration reform.
The Senate continues work on completing confirmation hearings for the Biden Cabinet and key senior staff. The House and Senate have reorganized the committees and subcommittees to be chaired going forward by Democrats. Because the Senate is split 50-50 (with Vice President Harris as the tie-breaker) Majority Leader Schumer (D-NY) and Minority Leader McConnell (R-KY) negotiated, and the Senate voted to approve a power-sharing agreement for governing the Senate. U.S. House Speaker Nancy Pelosi (D-CA) announced that an independent commission will be established to investigate the events surrounding the January 6 riots at the U.S. Capitol.
Tech Policy Priorities
Section 230. Congress will continue intensive bipartisan scrutiny of the role of major social media platforms and tech companies in spreading online misinformation and disinformation as well as allegedly censoring online political speech. Numerous Section 230 reform bills and potentially other measures will be debated as solutions for addressing these problems. In late March the House Energy & Commerce Committee plans a remote joint subcommittee hearing at which the CEOs of Twitter, Facebook, and Google will testify. Section 230 reform is a complex issue not limited solely to “Big Tech.” By its terms, Section 230 liability protection applies to multitudes of entities of every size that meet the definition of an “interactive computer service.” Broadly drafted, uninformed Section 230 bills that do not account for unintended impacts on the diverse range of entities in the Internet ecosystem that rely upon its liability protections–from Internet infrastructure providers to small and medium businesses and their users, to libraries, educational institutions, and nonprofit organizations–pose significant economic risks and threats.
Antitrust/Competition. Antitrust enforcement is expected to be a priority in the Biden Administration. The President is assembling teams of expert officials who will lead efforts within the Department of Justice and the FTC. Hearings addressing antitrust policy for the tech sector are ramping up in the House Judiciary IP Subcommittee, led by Chairman David Cicilline (D-RI). Senator Amy Klobuchar (D-MN), Chair of the Senate Judiciary Antitrust Subcommittee, introduced a comprehensive antitrust reform bill that takes particular aim at monopoly power in the tech sector and seeks to strengthen enforcement resources, standards, and practices.
Federal Privacy. Comprehensive federal privacy legislation continues to be an important goal that has been slowed in previous Congresses by disagreements about preemption and private rights of action. Negotiating a preemption solution has grown more complex as more states are enacting their own data privacy laws. With the Biden Administration’s re-engagement with the EU and its members on a range of matters, global businesses are seeking progress in intergovernmental negotiations for a replacement of the Privacy Shield to maintain transatlantic data flows.
Copyright. DMCA reform work is expected to continue in this Congress at a deliberative pace with Democrats in control. There have been some significant leadership changes in the Senate and House IP subcommittees for the 117th Congress. Senator Patrick Leahy (D-VT), who has extensive IP experience and has served as Chair and Ranking Member of the full Judiciary Committee, is the new Chair of the Senate Judiciary IP Subcommittee. Rep. Darrell Issa (R-CA), also having deep expertise in IP matters, is the new Ranking Member of the House Judiciary IP Subcommittee.
Broadband. Expanding broadband is a major bipartisan goal in Congress and is a key element of President Biden’s economic recovery and infrastructure agenda. Numerous bills already have been introduced in both the House and Senate seeking to accelerate broadband deployment in underserved rural and urban areas.
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