Your brief update on important Internet policy issues 

OUTLOOK

The Russian war on Ukraine, and its impact on the global economy and U.S. foreign policy, command substantial attention in Washington, even as numerous policy priorities proceed. On Mar. 28, President Biden officially unveiled his FY 2023 budget. Congress has begun reviewing Biden’s proposals and identifying the FY 2023 budget priorities they will eventually approve in the appropriations process. Congress is also working on legislation to support another COVID preparedness funding package. The Senate Judiciary Committee held several days of confirmation hearings for Supreme Court Justice nominee Judge Ketanji Brown Jackson. Work is underway in the Senate to complete Judge Jackson’s Judiciary Committee and Senate floor confirmation votes before the April 11 recess. 

TECH POLICY PRIORITIES 

Section 230/Intermediary Liability. Bipartisan consensus on specific Section 230 reform legislation has not emerged, but protection of children online remains a key focus in the debate. Justice Clarence Thomas recently reiterated his desire to have the U.S. Supreme Court clarify the scope of Section 230 in an appropriate case, absent Congressional action. 

Federal Privacy. There are indications of a renewed, bipartisan push for comprehensive federal consumer data privacy legislation in both the House and Senate, spurred in part by positive bipartisan discussions about the more targeted issue of protecting children’s online privacy. The timing for the introduction of comprehensive federal privacy measures in the Senate and House is unclear. In his State of the Union address on Mar. 1, without endorsing any particular pending bill, President Biden called on Congress to strengthen Americans’ privacy protections, ban targeted advertising to children, and demand that tech companies stop collecting personal data on children. 

Copyright/IP.  On Mar. 17, Sen. Thom Tillis (R-NC) and Sen. Patrick Leahy (D-VT) introduced S. 3880, the Strengthening Measures to Advance Rights Technologies Copyright Act (the “SMART Copyright Act”). The bill would amend Section 512(i) of the Digital Millennium Copyright Act by expanding the definition of “standard technical measures” for protecting copyrighted works and adding a new Section 514 granting the Library of Congress rulemaking authority to impose “designated technical measures” (DTMs) that online service providers must accommodate. Failure to comply with DTMs requirements could result in statutory damages. This new bill has drawn substantial opposition from numerous tech companies, major library organizations, academic institutions, and civil society organizations, among others. The Copyright Office is simultaneously reviewing the topic of technical measures that address Internet piracy in a series of stakeholder roundtables. Separately, Sen. Tillis’ staff continues to conduct stakeholder discussions about possible legislation to combat large-scale online commercial piracy. 

Antitrust/Competition. In a Mar. 28 letter to bipartisan leaders of the Senate Judiciary Committee, the Justice Department expressed support for S. 2992, the American Innovation and Choice Online Act, and H.R. 3816, similar legislation in the House. The legislation is intended to prohibit discriminatory conduct by dominant digital technology platforms. Prospects for floor action on these bills and other pending antitrust measures remain unclear given the limitations of the legislative calendar in this midterm election year, opposition to the bills from large tech companies and other groups, and ongoing efforts to craft versions of bills that could pass in the full Senate and House. 

Broadband. On Mar. 31, the House Energy & Commerce Committee held an oversight hearing to focus substantially on the implementation of broadband affordability programs and mapping improvements underway at the FCC. The NTIA, which is responsible for distributing approximately $48 billion in broadband grant funding under the Infrastructure Investment and Jobs Act (IIJA), is significantly occupied with the implementation rollout, including an initial series of webinars designed to assist prospective grant applicants. Numerous legislators have weighed in with NTIA to identify key priorities in this work, including affordability, digital inclusion, high-capacity networks, competition, and community engagement. The Senate Democrat leadership is working on scheduling floor votes to confirm FTC Commissioner nominee Alvaro Bedoya and FCC Commissioner nominee Gigi Sohn. 

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