i2Coalition January 2023 Legislative Brief

Your brief update on important Internet policy issues

OUTLOOK

The U.S. Congress spent much of its efforts during January on organizing and populating its legislative and operational committees.  Following a lengthy process involving fifteen rounds of voting and extensive negotiations on rule changes and committee assignments with a select group of Republican conservative Representatives who were opposing his election, Rep. Kevin McCarthy (R-CA) succeeded in his bid to become the next Speaker of the U.S. House.  As expected, House Democrats, now in the minority, chose Rep. Hakeem Jeffries (D-NY) to be their new leader.  The Senate returned to Washington on January 23 and has been engaged in finalizing committee rosters and completing other organizational matters. Congress is poised soon to begin substantial legislative and oversight activity going forward. House Republicans, in particular, plan to concentrate on a broad range of oversight and investigation activities directed at the Biden administration. Given a Republican-controlled House and a Democrat-led Senate–with narrow majorities in both bodies–passing legislation in the 118th Congress will be complex and difficult. The House and Senate will need to work with the Biden administration on raising the debt ceiling. The U.S. hit the debt ceiling on January 19, and the Treasury Department initiated “extraordinary measures” to ensure the federal government continues to pay its obligations on time. Absent Congressional action, the Treasury Department estimates a default date sometime by early summer, an event that Treasury Secretary Janet Yellen warns could lead to an economic catastrophe. 

TECH POLICY PRIORITIES

Section 230/Intermediary Liability. In mid-January, numerous amici briefs from a wide range of stakeholders were filed in support of Section 230 in Gonzalez v. Google LLC. The Court will hear oral arguments on February 21, 2023. The next day, the U.S. Supreme Court will hear the oral argument in Twitter v. Taamneh, which considers social media platforms’ potential liability under an anti-terrorism statute. On January 25, the House Energy & Commerce Committee Republican members held a roundtable on the role of “Big Tech” in the fentanyl crisis, during which Section 230 came up repeatedly in the discussion. In a Wall Street Journal op-ed published on January 11, President Biden called for fundamental reform of Section 230.   

Federal Privacy. With the change in control of the House, the precise path forward on federal  consumer data privacy legislation is not yet known. The new House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) supports a comprehensive, national approach and could choose to build upon the American Data Privacy and Protection Act (ADPPA) on which she partnered in the prior Congress with Rep. Frank Pallone (D-NJ)–now the Ranking Member of the Energy and Commerce Committee.  The federal privacy legislative priorities of the Senate Commerce Committee leaders in the new Congress–Chair Maria Cantwell (D-WA) and Ranking Member Ted Cruz (R-TX)–are not yet clear.  In his January 11 Wall Street Journal op-ed, President Biden called upon Congress to find bipartisan, common ground on privacy protection for Americans, especially children. 

Copyright/IP. The U.S. Patent and Trademark Office extended the deadline until February 17 for submitting comments in response to a request for input on the agency’s 2022-2026 strategic plan. In 2023, the rising use and prominence of AI technology, like ChatGPT, may increase pressure on policymakers in Congress and the government to explore its ramifications for IP legislation and litigation, among other areas. 

Antitrust/Competition.  On January 24, the U.S. Dept. of Justice and eight states filed an antitrust lawsuit against Google, alleging that the company has abused its market power in online ads. The lawsuit, expected to be lengthy and complex, calls on Google to divest itself of parts of its interlocking systems of ad tech tools.  President Biden called for bringing more competition back to the tech sector in his January 11 Wall Street Journal op-ed. The Federal Trade Commission (FTC) proposed a new rule that would ban non-compete clauses in employment contracts based on a preliminary finding that such terms constitute an unfair method of competition in violation of the FTC Act.

Broadband. The NTIA is developing guidance for states about how to approach local map challenges after it allocates the $42.5 billion from the Broadband Equity, Access, and Deployment (BEAD) program. The NTIA is preparing to allocate money to the states from BEAD following the closing of the deadline to challenge the Federal Communications Commission’s maps on which that funding is dependent. The NTIA has already decided on a base of $100 million for each state and has said it expects to allocate all remaining funds by June 30.  In Congress, spectrum auction reauthorization will be on the agenda again in the first quarter of 2023 after key telecom and defense stakeholders in the prior Congress failed to reach an agreement on the issue in a broader year-end package. A short-term spectrum auction reauthorization included in the FY 2023 omnibus appropriations bill expires on March 9, 2023. 

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