i2Coalition December 2022 Legislative Brief
Your brief update on important Internet policy issues
With the 117th Congress drawing to a close, the U.S. House and Senate aim to pass a nearly $1.7 trillion FY 2023 omnibus federal government spending bill before adjourning for the holiday break. If the omnibus spending bill is not passed by a December 23 deadline, another temporary continuing resolution would be needed in order to avert a federal government shutdown. The new, 118th Congress begins on January 3, 2023, when Republicans will take control of the House. Rep. Kevin McCarthy (R-CA) wants to be elected House Speaker in the new Congress and is working to shore up support for his election among Republican Members of Congress in the midst of some prominent conservative Republicans who have voiced opposition to McCarthy. On December 19, the House January 6 Select Committee held its final hearing and prepared to release the full text of its report before the holiday break. After 18 months of investigation and hearings on the January 6 attack on the U.S. Capitol, the Committee unanimously voted to refer criminal charges against former President Donald Trump to the U.S. Department of Justice (DOJ), listing four charges: obstruction of an official proceeding; conspiracy to defraud the United States; conspiracy to make a false statement; and insurrection. These criminal referrals hold no legal weight and do not compel any action by the Justice Department, but they mark the first time in American history that Congress has referred a former president for criminal prosecution. The decision on whether to prosecute former President Trump, who is seeking to run again as the Republican nominee for President in 2024, lies with the Justice Department, which is conducting its own investigation of the events of January 6, 2021, under the direction of a special counsel.
TECH POLICY PRIORITIES
Section 230/Intermediary Liability. The legal briefing process is underway for the U.S. Supreme Court’s review of the scope of Section 230 immunity in Gonzalez v. Google LLC, with oral argument set for February 21, 2023. The Court will hear oral arguments on February 22, 2023, in the Twitter v. Taamneh case reviewing platforms’ potential liability under an anti-terrorism statute. Robust legislative debate about Section 230 reform is expected to restart early in the next Congress. With control of the House in the new Congress, Republican tech policy leaders intend to focus on a “Big Tech” accountability agenda in which Section 230 reform is a major component.
Federal Privacy. Due to a lack of sufficient bipartisan consensus, neither comprehensive federal consumer data privacy legislation nor any childrens’ privacy bills passed in the 117th Congress. Debates on these issues are expected to resume in the next Congress. The FTC is continuing to review the massive record of public comments compiled in response to its Advanced Notice of Proposed Rulemaking on commercial surveillance and data security. On December 20, the FTC announced that Epic Games, the maker of the popular video game “Fortnite,” agreed to pay $520 million in penalties to the government to settle alleged children’s privacy law violations and other deceptive abuses involving the use of dark patterns.
Copyright/IP. In the new Congress that begins in January, the shift to Republican control of the U.S. House, as well as committee membership changes in the House and Senate, will spotlight new legislative leaders in digital copyright and other intellectual property debates. While the 117th Congress did not pass any major copyright measures, it did advance the INFORM Act, a bipartisan, bicameral bill that targets the online sale of stolen and counterfeit goods, by including it as part of the FY 2023 omnibus spending bill.
Antitrust/Competition. Lacking sufficient bipartisan support, the major pending federal antitrust tech bills of the 117th Congress–the Open Apps Markets Act (S. 2710) and the American Innovation and Choice Online Act (S. 2992)–did not pass. Similarly, opponents of the Journalism Competition and Protection Act (S. 673) succeeded in blocking passage of the bill in the 117th Congress. A version of the Merger Filing Fee Modernization Act was included in the FY 2023 omnibus spending package. This legislation raises the cost of merger filing fees for transactions of $5 billion or more but was modified so that the increased funding will not be allocated until 2024. While leaders in the next Congress consider potential next steps for any federal antitrust tech legislation, the FTC and DOJ will continue to pursue antitrust and competition policy enforcement in specific cases and investigations.
Broadband. Congress failed to reach a longer-term agreement on spectrum auction reauthorization before the end of the 117th Congress, so it included in the omnibus spending bill an extension for spectrum auction authority until March 9, 2023, intending that efforts to resolve disputed matters will relaunch early in the new Congress. Consideration of bipartisan, bicameral legislation to provide tax exemptions for broadband grants awarded under the federal infrastructure and economic recovery law programs also will continue in the next Congress, as this legislation similarly was not included in the FY 2023 omnibus spending bill. As the NTIA and FCC continue to advance the rollout of broadband deployment programs, there are growing bipartisan calls by lawmakers for the federal government to take steps to ensure their efficiency and long-term success, including: streamlining and harmonizing permitting for deployment on federal lands; sustaining investments after initial funding runs out, potentially through expansion of the Universal Service Fund contributor base; and ensuring the accuracy of the FCC-developed National Broadband Map, which the NTIA is required to use to award $42.5 billion in federal funding for broadband equity, access, and development.
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