Your brief update on Internet policy issues.

OUTLOOK 

Heading into the Memorial Day recess period, leaders in the U.S. Congress and the Biden Administration still have many major domestic policy priorities they wish to advance this year, including an additional COVID preparedness aid package; a narrower version of the Biden Administration’s Build Back Better proposals to be passed through reconciliation (potentially focused on raising taxes on corporations and the wealthy, energy and climate development, deficit reduction, and lower drug prices); and the FY 2023 appropriations process, among others. Efforts by Congress and the President to make progress on their articulated goals have been repeatedly buffeted by ongoing national and global problems, new crises, and eruption of polarized social, political, and legal debates about them (e.g., the persistence of COVID-19 and the path forward, the deepened Ukraine-Russia war, domestic terrorism and mass shootings, immigration policy for the U.S.-Mexico border, rising inflation, high gas, and food prices, baby formula shortages, and anti-abortion rights and pro-choice protests inflamed by the leak of a draft Supreme Court opinion to overturn Roe v. Wade). In the midst of this turbulence, and with the midterm election campaigns looming and dwindling legislative calendar days available, it is unclear how much of the remaining agenda can be completed.  

TECH POLICY PRIORITIES 

Section 230/Intermediary Liability. State-level social media laws in Texas and Florida drew headlines following two recent federal courts of appeals decisions. On May 11 the Fifth Circuit U.S. Court of Appeals reversed a lower court decision and allowed the social media law in Texas (HB 20) to go into effect pending court review of its constitutionality. Industry groups NetChoice and CCIA are seeking an emergency ruling from the U.S. Supreme Court to reinstate the lower court’s injunction. On May 23, the Eleventh Circuit U.S. Court of Appeals affirmed a lower court injunction blocking Florida’s social media law because it likely violates platforms’ First Amendment protections, but found that several of the law’s transparency reporting requirements could remain in effect pending further legal review. Senator Bennett (D-CO) introduced the “Digital Platform Commission Act,” which would establish a new, five-member federal commission to protect consumers by developing transparency rules for online content moderation and scrutinizing platforms’ content recommendation algorithms. The proposed commission could also require that platforms regularly conduct public risk assessments of violent content.  

Federal Privacy. Senate Commerce Committee Chair Maria Cantwell (D-WA) and Ranking Member Roger Wicker (R-MS) recently revived discussions about negotiating a comprehensive federal data privacy bill. Connecticut became the fifth state to enact its own privacy legislation. The FTC approved a new policy statement on enforcing children’s online privacy protection with a focus on education technology. 

Antitrust/Competition. Senate Majority Leader Chuck Schumer (D-NY) may try to hold a major vote on Big Tech competition legislation by early summer and reportedly is in discussions with policy leaders on this issue, including Senator Amy Klobuchar (D-MN), the author of the American Innovation and Choice Online Act. The Senate confirmed Alvaro Bedoya to serve as an FTC Commissioner, giving Democrats a 3-2 majority and positioning them to pursue Chair Lina Khan’s antitrust, privacy, and consumer protection agenda. 

Broadband. The Commerce Department’s National Telecommunications and Information Administration (NTIA) launched an “Internet for All” initiative including a new website. NTIA has published Notices of Funding Opportunity for each of the three broadband infrastructure programs it administers under the Infrastructure Investment and Jobs Act (IIJA). It is also conducting educational webinars about how to apply for funding. The FCC continues intensive efforts on improving broadband maps by the fall of 2022. The agency has also sought comments on a proposal to achieve widespread deployment of 100/20 Mbps broadband service throughout rural areas served by carriers that accept Alternative Connect America Cost Model funding.

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