Your brief update on important Internet policy issues.

OUTLOOK

The midterm elections on November 8 will determine political control of the U.S. House and Senate starting in January 2023. The results will substantially influence U.S. policy-making efforts in key economic sectors for the next two years and have a major impact on the Biden administration’s ability to pursue its legislative priorities. After the midterm elections, lawmakers plan to return to Washington on November 14 to advance remaining must-pass legislation in the lame-duck session before closing out the 117th Congress. These measures include the FY 2023 National Defense Authorization Act, as well as the passage of a federal budget by December 16, the expiration date for the current Continuing Resolution, which extended funds to keep the federal government operating.  

TECH POLICY PRIORITIES

Section 230/Intermediary Liability

The Supreme Court has agreed to review Gonzalez v. Google LLC, a case that addresses the issue of whether Section 230 liability protections extend to platforms’ algorithmic recommendation engines. The Supreme Court also agreed to review platforms’ potential liability under an anti-terrorism statute in a separate case, Twitter, Inc. v. Taamneh. Numerous amicus briefs are expected to be filed with the Court in these cases. The outcome of these Supreme Court reviews could have massive implications for the scope of online liability and how social networks and multitudes of other online providers moderate content on their services.

Federal Privacy

Comprehensive federal privacy legislation lacks bipartisan consensus in the House and Senate and is currently not expected to pass in this Congress. To date, there is no indication that supporters of H.R. 8152, the American Data Privacy and Protection Act, passed by the House Energy & Commerce Committee, have been able to resolve the disputes that pose obstacles to its passage by Congress during the lame-duck session after the November 8 midterm elections. The FTC is accepting comments by November 21 on a broad set of questions it posed in an Advanced Notice of Proposed Rulemaking about the prevalence of commercial surveillance and data security practices that harm consumers.  The FTC has asked whether it should implement new trade regulation rules or other regulatory alternatives concerning the ways in which companies collect, aggregate, protect, use, analyze, and retain consumer data, as well as transfer, share, sell, or otherwise monetize that data in ways that are unfair or deceptive. 

Copyright/IP

On October 4, the Copyright Office completed its series of stakeholder consultations about the potential development and implementation of technical measures to identify or protect copyrighted works online. The Copyright Office is reviewing the record of these sessions and will provide its findings to Congress. The Office conducted these sessions at the request of Senate Judiciary IP Subcommittee Chair Patrick Leahy (D-VT) and Ranking Member Thom TIllis (R-NC).

Antitrust/Competition

On October 25, multiple media and journalism organizations sent a letter to White House officials calling on the Biden administration to support the passage of the bipartisan Journalism Competition and Preservation Act (JCPA) (S. 673 and H.R. 1735). They assert that the JCPA is needed to rebalance the unequal relationship between major tech platforms and smaller publishers and news organizations. The bill would grant an exemption to antitrust laws to enable news organizations to coordinate together to bargain with tech firms on fair terms and compensation for their work when it appears on digital platforms. Supporters of the JCPA want to advance it during the lame duck session, but the JCPA continues to draw substantial opposition and criticism from numerous tech industry and public interest groups. The bill’s opponents have asserted, among other things, that in practice, the JCPA will prevent digital platforms from carrying out their content moderation policies and encourage the creation of a media cartel that will impose taxes on links.  

Broadband

The federal government’s multiple programs to fund broadband deployment in unserved and underserved regions continue to roll out. On October 27, the U.S. Department of Agriculture (USDA) announced that USDA is providing $759 million to bring high-speed Internet access to people across 24 states, Puerto Rico, Guam, and Palau. The investments include funding from President Biden’s Bipartisan Infrastructure Law, which provides $65 billion to expand reliable, affordable, high-speed internet to all communities across the U.S. The National Telecommunications and Information Administration (NTIA) released a Workforce Planning Guide  to help Broadband Equity, Access, and Deployment (BEAD) Program applicants develop workforces capable of implementing grants. BEAD is the $42.5 billion program of the NTIA for allocating last-mile broadband funds. The FCC’s new national broadband mapping, which will in turn, determine the allocation of BEAD funding to particular states, is targeted for release sometime next month. The Commerce Department also reported that demand for “middle mile” broadband grants is surging, with more than 235 applications submitted with the total amount requested exceeding $5.5 billion. The demand far exceeds the $1 billion slated for Commerce’s debut middle mile grant program. The middle mile program is intended to enable network linkages between communities, as opposed to last-mile connections provided to individual end-user customers. 

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