Your update on important Internet policy issues for the period from mid-January to mid-February 2020
Congressional work on tech industry oversight and legislation has ramped up following the completion of the impeachment proceedings in the Senate and the return to legislative business as usual in both chambers of Congress.
- Section 230/Intermediary Liability.
As expected, Congress has begun debating potential new limitations to the Section 230 liability shield for online providers as a way to combat child sexual exploitation and abuse on the Internet and to prevent the spread and influence of fake political information in our electoral processes, among other things. Bills that would narrow the Section 230 liability shield are currently expected to be introduced in the coming weeks accompanied by a series of hearings.
The Department of Justice has followed through on its promise to conduct a February workshop to gather extensive data and public input about the impact of Section 230 on law enforcement efforts against online harms including child exploitation.
- DMCA Modernization. The Senate Judiciary IP Subcommittee has launched a year-long series of hearings to review the workings of the Digital Millennium Copyright Act with the goal of drafting a bipartisan bill to modernize the DMCA by the end of this Congress.
- Federal Privacy. The House and Senate are drafting comprehensive online privacy legislation and separate bills have been introduced to expand and strengthen children’s and teen’s online privacy protections.
- Antitrust. Both Congress and the Administration are continuing to scrutinize “big tech” from an antitrust and consumer protection perspective. The FTC recently broadened its investigation of Google, Amazon, Apple, and Microsoft to assess if they had acquired smaller rival companies in ways that had harmed competition and consumers.
These activities are unfolding against the backdrop of Presidential and Congressional campaigns and election year dynamics. The pace of debate and potential for action by Congress and the Administration on any given issue will surely be influenced by election year politics and priorities. In 2020, the i2Coalition will continue to educate legislators about the role of Internet infrastructure providers in maintaining and promoting a safe and open Internet. We seek the development and promotion of balanced policies that achieve that goal without imposing precipitous, undue or unwarranted burdens on our industry that would squelch opportunities for innovation, increased competition, and economic growth.
Section 230/ Intermediary Liability Rules:
- Senate: Graham/ Blumenthal Draft Bill – Senate Judiciary Chairman Graham (R-SC) and Senator Blumenthal (D-CT) are drafting the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020” (or “EARN IT Act of 2020” [PDF]) expected to be introduced in late February. The draft would put the Attorney General at the head of a commission that develops best practices for preventing online child exploitation. It would amend Section 230 to require online services to certify that they follow these practices or risk significantly expanded liability if individuals use their services to post or send child sexual abuse material. The bill could deprive platforms that use end-to-end encryption of their immunity from civil suits under Section 230 for child exploitation materials posted by users.
- House: Schakowsky Changes – Rep. Jan Schakowsky (D-IL), the chairwoman of the Consumer Protection and Commerce Subcommittee, announced at the State of the Net conference that she is considering possible changes to narrow the Section 230 liability shield (see Bloomberg news report). Schakowsky said her review is preliminary and focused on political information, rather than a broader range of concerns lawmakers have raised such as child exploitation or online drug sales. She said she isn’t focused on removing the measure entirely and hasn’t yet decided how she would propose changing the law.
- Justice Department Workshop – The Justice Department will hold a public Sec. 230 workshop on February 19th, in Washington, DC titled “Section 230 – Nurturing Innovation or Fostering Unaccountability?” This event follows DOJ’s initiation of discussions in December 2019 with state AGs about conducting a broad review of Section 230. The workshop will consist of three panel discussions soliciting the viewpoints of participants from academia, industry, and government:
- Panel 1, Litigating Section 230, will cover the history, evolution, and current application of Section 230 in private litigation. Professor Jeff Kosseff, United States Naval Academy, and author of the 2019 book The Twenty Six Words That Created the Internet, is a panelist.
- Panel 2, Addressing Illiicit Activity Online, will discuss whether Section 230 encourages or discourages platforms to address online harms, such as child expoitation, revenge porn, and terrorism, and its impact on law enforcement. The panel includes Matt Schruers, President of the Computer and Communications Industry Association (CCIA).
- Panel 3, Imagining the Alternative, will focus on the implications on competition, investment, and speech of Section 230 and proposed changes. Julie Samuels, Executive Director, Tech: NYC will participate as a panelist.
- USMCA – As signed into law by President Trump, USMCA retained the provisions similar to section 230 of the Communications Decency Act (the same language that was included in the U.S.-Japan Trade Agreement that lawmakers in Tokyo approved in late November 2019).
- India Intermediary Liability Rules – India is working on modifications to its intermediary liability rules which raise concern for Indian technology innovation, free expression and global competitiveness. As initially proposed, the changes would expand the due diligence measures required to avail safe harbor to include proactive monitoring, mandatory local incorporation, enabling the traceability of originators (which would impact encryption), and very short timelines for content takedown and user data sharing. This will not only place a significant burden on businesses providing Internet services but also passes the legal burdens of deciding what content should stay online onto private companies, that must extrajudicially interpret the law. Given the feedback from industry and civil society, the IT Ministry seems to be taking some time to revise the rules to lessen their impact on many online intermediaries. The rules are expected to be announced and enacted in the coming weeks.
- UK Content Regulation – On February 12, 2020, the British government announced that it wants to give regulators the power to fine social media companies for harmful material on their platforms. Under the plan, the U.K.’s telecommunications watchdog, Ofcom, would be given the power to enforce a “duty of care” on companies such as Facebook and Twitter “to protect users from harmful and illegal terrorist and child abuse content.” Firms that allow harmful material to flourish or don’t remove it quickly could be sanctioned. New legislation will be needed for it to take effect and officials are working to draft a new law. Ofcom will hold companies to account if they don’t deal with harmful material, and platforms will have to remove illegal content quickly and minimize the risk of it appearing.
- SESTA/FOSTA Call for Repeal – Rep. Ocasio-Cortez (D-NY) has said Congress should repeal SESTA-FOSTA, which aims at curtailing sex trafficking online, adding a prominent progressive voice to the movement to overturn the statute. The measure, which passed through both chambers of Congress with overwhelming support in 2018, holds websites legally liable for “knowingly” enabling sex trafficking. But some advocates and lawmakers say the law harms sex workers by forcing them off websites they use to safely conduct business. In December, she joined Rep. Ro Khanna (D-CA) and 16 other Democrats to introduce H.R. 5448, the SAFE SEX Workers Study Act, which would support a study on the health and safety of sex workers.
- Senate Judiciary Hearing – On February 11, 2020, the IP Subcommittee of Senate Judiciary held a lookback hearing on the Digital Millennium Copyright Act (DMCA), which was enacted in 1998. Chairman Tillis (R-NC), Ranking Member Coons (D-DE), and Senator Leahy (D-VT) attended the hearing. Witnesses included representatives from the academia and private practice. IP Subcommittee Chair Tillis announced that he would proceed with a series of hearings throughout 2020 with the goal of drafting a bipartisan DMCA modernization bill by year-end. At the hearing Tillis and Ranking Member Coons commented that Congress needs to consider rebalancing and reforming the 22-year old DMCA because it was not designed for our current era of global data platforms. The next hearing will be on March 10 focusing on international copyright and online piracy.
Trade and Tax:
- USMCA – President Trump signed into law the U.S.-Mexico-Canada Agreement (USMCA) on January 29, 2020. Canada has not yet ratified the deal but has started the ratification process.
- Digital Tax – The UK is expected to move forward with plans to introduce a new digital tax in April, placing a 2% tax on sales of big tech firms. This comes as the U.S. and France recently agreed to a truce on their digital tax.
E&C Bill – The House Energy and Commerce Committee received public input on the staff-level, initial draft of a bipartisan privacy bill released in December 2019 and which is designed to establish more transparent privacy practices across all sectors of the U.S. economy, and empower the Federal Trade Commission to enforce violations. The Committee is reviewing that feedback with the goal of producing a new draft in the near future. Privacy groups have said that the draft doesn’t have enough teeth, while industry is calling for narrower transparency requirements. Two big issues between parties still remain in negotiating a final package – whether to include a private right of action and federal preemption.
Castor Bill – On January 29, 2020, Rep. Kathy Castor (D-FL) introduced the Protecting the Information of Our Vulnerable Children and Youth Act that would prohibit online platforms from targeting ads to those under the age of 13 and give more control to users between the ages of 13 and 17 on how their data is used by companies. The bill adds to the 1998 Children’s Online Privacy Protection Act (COPPA) a private right of action enabling parents to sue companies for children’s privacy violations. Castor’s bill may become a piece of the House Energy and Commerce Committee’s comprehensive privacy bill that is still in the draft stages.
- Senate – The Senate Commerce Committee Chair Wicker (R-MS) and Ranking Member Cantwell (D-WA) are continuing to draft privacy bills and trying to find common ground. Sticking points have been the private right of action and federal preemption.
- States – California – California Attorney General Xavier Becerra released an updated set of draft rules for how companies must follow the state’s landmark privacy law (CCPA). Becerra modified the draft rules he unveiled last October by adding new examples of how companies can give notice to consumers about data collection. The update also contains new examples of how internet protocol addresses may be considered personal information under the CCPA.
- Administration – NIST Framework – On January 16, 2020, NIST unveiled a voluntary framework that organizations can follow to mitigate online privacy risks. The Privacy Framework 1.0 has an overarching structure modeled on that of the widely used NIST Cybersecurity Framework, and the two frameworks are designed to be complementary and also updated over time.
- House Judiciary Field Hearing – On January 16, 2020, the House Antitrust, Commercial and Administrative Law Subcommittee held its fifth hearing on the topic of “Online Platforms and Market Power: Competitors in the Digital Economy.” The hearing examined a series of alleged anticompetitive practices carried out by such companies as Apple, Amazon, Google, and Facebook and designed to thwart future competition from emerging tech startups. Witnesses for the hearing included: 1) Patrick Spence, CEO, Sonos; 2) David Barnett, CEO, PopSockets; 3) David Heinemeier Hansson, CTO, Basecamp; and 4) Kirsten Daru, VP and General Counsel, Tile.
- FTC Investigation Expansion – On February 11, 2020, the FTC broadened its investigation of big tech companies seeking to determine if they have acquired smaller rivals in ways that harmed competition and consumers and evaded regulatory scrutiny. The FTC ordered Amazon, Apple, Microsoft, and Google owner Alphabet to provide detailed information about their acquisitions of smaller firms over the past ten years. The probe is expected to involve hundreds of transactions that did not receive federal regulatory review because their dollar value fell below the threshold for antitrust review. The FTC stated that it did not initiate this probe for any specific enforcement purpose but its results could lead the FTC to seek to unwind improper deals or to craft new regulations for acquisition reviews.
- State Cybersecurity Bill – On January 16, 2020, Senators Hassan, Peters, Cornyn, and Portman, introduced S. 3207, The Cybersecurity State Coordinator Act, which would establish a federally funded program to put in place state cybersecurity officials nationwide, increasing the ability of states to respond to cyberattacks. The bill would create a federal program named after the bill that would ensure every state has a cybersecurity coordinator, with this person responsible for working with all levels of government to prepare for, prevent and respond to cyberattacks.
- Democrat Infrastructure Package – House Democratic leaders of the Energy and Commerce, Transportation, and Ways and Means Committees unveiled a $760 billion framework for rebuilding the nation’s highways, airports and other infrastructure. The “Moving Forward Framework,” provides a foundation for legislation that is currently being drafted or debated in House committees. It includes provisions allocating $80 billion to build out broadband infrastructure to unserved and underserved communities over five years and $5 billion for low-interest loan financing. Also included is $540 million to boost state efforts to help increase digital equity and adoption of broadband, as well as $600 million to support these priorities for covered populations.