Your brief update on important Internet policy issues
After months of intense negotiations, President Biden’s domestic economic agenda legislation made significant progress in the U.S. Congress in November.
First, a $1.2 trillion bipartisan infrastructure bill (which cleared the Senate on August 10 by a bipartisan 69-30 vote) was approved in the House on Friday, November 5 by a bipartisan vote of 228-206 (13 Republicans voted in favor). President Biden signed the bill into law on November 15. The bill, now called the “Infrastructure Investment and Jobs Act” (IIJA), will fund a broad range of traditional infrastructure improvements including roads, bridges, rail, and transit, as well as $65 billion for broadband deployment for unserved and underserved areas.
Second, using the budget reconciliation process which allows passage by a simple majority vote, on November 19 the House approved the $1.75 trillion Build Back Better Act (BBBA) by a vote of 220-213 (with only one no vote among the Democrats). The BBBA includes funding for numerous social program priorities of the Democrats, including health care, climate and green energy, child care, and education. Among its provisions affecting the tech sector, the bill includes FTC funding to create a new bureau focused on data privacy and identity theft, and adds more funding for DOJ and FTC antitrust enforcement, and for Internet connectivity programs for low-income households and distance learning. The BBBA now moves on to the Senate where it will face increased scrutiny. Majority Leader Schumer hopes to bring the BBBA to the floor for a Senate vote in December that will leave enough time before the holiday recess for the House to re-vote on it and send it to the President’s desk. Obstacles for passage of the BBBA in the Senate must be overcome, including changes expected in order to satisfy concerns of key Senators and the Senate parliamentarian. Senate passage of the BBBA will require support from all Democrats and independents and the Vice President because Republican Senators are united in opposition to it. Before year-end Congress also plans to pass the FY2022 National Defense Authorization Act (NDAA), a continuing resolution to keep the federal government funded, and an increase to the debt ceiling.
TECH POLICY PRIORITIES
Section 230/Social Media. The impact of the Facebook whistleblower (Frances Haugen) testimony in Congress and overseas has continued to drive interest in advancing legislation to better protect kids and teens online and hold accountable Facebook and other large social media platforms, including for the effects of their algorithms. Two House E&C Subcommittees will hold legislative hearings on these issues in December and will consider Section 230 reform and other proposals to enhance transparency and promote improved online safety. Additional hearings and legislative activity in the Senate are also anticipated.
Federal Privacy. Bipartisan support has grown for the creation of a new FTC privacy bureau. The BBBA, if enacted into law as it was passed by the House Democrats, would provide $500 million to establish the new bureau. Comprehensive federal consumer data privacy legislation has not to date been introduced in this Congress by the Democrat leaders of the House E&C Committee and Senate Commerce Committee but there have been some renewed bipartisan calls for it by other members. The Republican leaders of these House and Senate committees have offered comprehensive federal consumer data privacy proposals. Preemption and private rights of action have been the traditional key sticking points blocking a bipartisan path forward. Legislation could advance on the issue of strengthening kids’ and teens’ online privacy protections which has significant bipartisan support. On the global front the U.S. and EU are continuing negotiations about a replacement for the Privacy Shield in support of cross-border data flows.
Copyright/IP. The Judiciary Committees in the House and Senate have continued work on anti-counterfeiting legislation. The Senate Judiciary Committee is also focused on patents and an upcoming confirmation hearing for Kathi Vidal, President Biden’s nominee to be Director of the U.S. Patent & Trademark Office.
Antitrust/Competition. On November 16, the Senate confirmed President Biden’s nominee to head the DOJ’s Antitrust Division, Jonathan Kanter. Senate Judiciary Antitrust Subcommittee Chair Amy Klobuchar (D-MN) has introduced the “Platform Competition and Opportunity Act” with Senator Tom Cotton (R-AR), a measure intended to make it harder for large technology companies as defined in the bill to acquire rivals and to force them to prove that acquisitions will not harm competition.
Broadband. With the bipartisan infrastructure bill now signed into law providing a $65 billion broadband investment, next steps involve implementation by the NTIA and the states. Accurate broadband mapping efforts underway at the FCC also will be critical to the success of the implementation process. Some of the FCC’s existing broadband support programs could gain a boost in funding if the BBBA ultimately passes the Senate and House and becomes law. On Dec. 1, the Senate Commerce Committee plans to hold confirmation hearings for Alan Davidson, President Biden’s nominee to lead NTIA, and for Gigi Sohn, Biden’s nominee for FCC Commissioner. The Committee also plans to vote on Dec. 1 on the confirmation of Jessica Rosenworcel as FCC Chair and Alvaro Bedoya as FTC Commissioner. The goal is for the full Senate to confirm Rosenworcel and Bedoya by year-end.
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