Hearings And Letters On Privacy, Pending Supreme Court Changes: July 2018 Legislative Update

Congressional Outlook

In the Senate: Most of the Senate’s focus will be on the nomination of Judge Brett Kavanaugh to the Supreme Court. In the past, Judge Kavanaugh has supported the “third party” doctrine, which claims the search of a phone company or other sort of database does not constitute a search of the “person” for 4th Amendment purposes. The other priority for the Senate will be conferencing and passage of the National Defense Authorization Act (NDAA), which includes language from the email privacy act.

Senate Majority Leader McConnell maintains the Senate will be in session for most of the month.  There is a possibility the Senate will recess the last two weeks of August for an abbreviated district work period.

House leadership may announce that the House will not be in session the last week in July.  The House has already scheduled District work periods for the entire month of August. Both the House and the Senate will be working on appropriations bills ahead of any recess.

Privacy/Data Breach

House Hearings: Wednesday, July 11th, the House Energy and Commerce Communications and Technology Subcommittee held a hearing entitled, “Protecting Customer Proprietary Network Information in the Internet Age.”  This hearing examined the various entities that have access to information that is regulated as CPNI when it is held by a telecommunications provider. There was also a discussion about whether there should be harmonized rules for Internet Service Providers (ISPs) and which agency ought to have jurisdiction over any rules.  

The House Judiciary Committee will hold a hearing, “Content Filtering Practices of Social Media Giants” on July 17th. Twitter and Facebook will send representatives to testify.

On July 18, the House Energy and Commerce Committee’s subcommittee on Digital Commerce and Consumer Protection will hold an FTC Oversight hearing on July 18th with Chairman Joe Simons and the recently confirmed bench of commissioners. The hearing will focus on consumer data protection and data privacy issues.  

Committee Letter to Apple/Alphabet: Leaders of the House Energy and Commerce Committee sent letters to Apple and Alphabet inquiring about the collection of audio and location information. Chairman Greg Walden (R-Ore.) and three Republican subcommittee chairs called on Apple CEO Tim Cook and Alphabet CEO Larry Page to provide details on whether third parties have access to such data on their platforms.  

Net Neutrality/Encryption

Since the Neutrality rules expired on  June 11th, we have been watching movement in the federal and several state legislatures. So far, there has not been a change from the various bills and executive orders we previously mentioned. Advocacy groups are organizing to restart both the Net Neutrality and encryption conversations in the Fall.  

Draft NTIA Reauthorization Legislation: On June 26, 2018, the House Energy and Commerce Subcommittee on Communications and Technology held a hearing to discuss draft NTIA Reauthorization legislation.  Some Members have an interest in marking up the legislation as soon as possible, possibly after August recess. While the bulk of the legislation is concerned with rural broadband access and supply chain (read ZTE) concerns, the draft bill does include a sense of the Congress on the importance of WHOIS database information.