Your brief monthly update on important Internet policy issues
President Biden returned in mid-June from his first major overseas trip to Europe focused on negotiating with Congress on a bipartisan deal for traditional infrastructure investments as part of his two-part economic recovery plan. Some influential support has grown in the Senate (a core bipartisan group of 21 Senators) for a compromise plan that costs about $1.2 trillion over eight years, far less than the approximately $4 trillion that President Biden initially proposed to be spent on a broader range of infrastructure areas and other issues including climate change and social programs to provide care for children and the elderly.
The key point of contention in the narrowed bipartisan Senate infrastructure negotiations with the White House is how to pay for these investments in roads, bridges, water projects, and broadband ($65 billion). Some progressive Democratic Senators are warning that they will not support an infrastructure package that does not have provisions addressing climate change, such as long-term tax credits for renewable fuels, electric vehicles, and associated infrastructure. If President Biden reaches a bipartisan deal on the narrowed “traditional” infrastructure proposal, then Democrat leaders in the House and Senate will seek to pass it using regular order, and likely in the fall Democrats would continue to pursue the more “progressive” proposals such as climate and children and families support utilizing the budget reconciliation process. If in the next few weeks the bipartisan negotiations between the Senate and the White House on the narrow package fall apart, Democrats would plan to move forward in the fall on all issues (e.g., not only upgrading transportation and utilities and expanding broadband, but also fighting climate change, accelerating the adoption of clean energy, expanding child and elderly care, and boosting job training programs) by utilizing the budget reconciliation process and passing the legislation on a party-line vote.
TECH POLICY PRIORITIES
Section 230: Additional bills seeking to limit or reform Section 230 have been introduced but bipartisan consensus on the path forward in Congress has not yet emerged. The House Energy and Commerce Committee has invited selected stakeholders to engage informally in roundtable discussions on approaches to Section 230 reform. The Committee is not likely to address Section 230 actively until its work on the infrastructure package is completed. Several new bills introduced in the Senate focus on increasing large social media platforms’ transparency regarding their use of algorithms, and target preventing discrimination on the basis of race, age, gender, and other protected characteristics. They also require transparency regarding platforms’ content moderation policies. A companion bill to Senator Warner’s SAFE TECH Act has been introduced in the House.
Antitrust/Competition: Under the leadership of House Judiciary Antitrust Subcommittee Chair Cicilline (D-RI), five House antitrust bills targeting Big Tech companies were introduced on June 11 with a markup scheduled for June 23. Senator Amy Klobuchar, Chair of the Senate Judiciary Antitrust Subcommittee, who has already introduced significant antitrust reform legislation, may draft some similar measures in the Senate. The FTC has new leadership; following her Senate confirmation as an FTC Commissioner, President Biden elevated Lina Khan, a prominent Big Tech critic, to be the new Chair.
Federal Privacy: The House Energy & Commerce Committee is holding roundtable discussions on federal consumer data privacy legislation with the goal of resolving sticking points that have impeded progress, including preemption and private rights of action, as well as discussing other key issues including minimizing the collection of consumer data. Bills to curb social media consumer data collection and tracking have been introduced in both the House and Senate. Colorado recently joined California and Virginia in passing its own privacy law to take effect in mid-2023. While it has been difficult for Congress to agree on a comprehensive federal consumer data privacy bill, bipartisan support and consensus have continued to grow for updating laws to better protect children’s online privacy.
Copyright/IP: The IP agendas set by the Democratic Judiciary Committee Chairs in the House and Senate currently do not include moving major DMCA reform legislation as a top priority. The Senate Judiciary IP Subcommittee Ranking Member Senator Thom Tillis (R-NC) has continued to engage with stakeholders on the drafting of his comprehensive DMCA reform bill. Senator Leahy (D-VT), Chair of the Senate Judiciary IP Subcommittee, and Ranking Member Tillis are assessing patent quality and related concerns in a June hearing. In the House, Judiciary Committee Chair Nadler (D-NY) introduced legislation and held a hearing addressing trademark contributory liability for online marketplace platforms when a third party sells a counterfeit product. A companion to Nadler’s trademark bill was introduced in the Senate by Senators Coons (D-DE) and Tillis (R-NC).
Broadband: Closing the digital divide in unserved and underserved areas to ensure access to broadband as an “essential” service for all Americans is a strong bipartisan priority. The infrastructure negotiations between the bipartisan group of Senators and the White House involve a proposal for $65 billion in funding. Democrat leaders of the House and Senate Commerce Committees want to mark up broadband provisions of the infrastructure legislative package before the August Congressional recess. The FCC is simultaneously working intensively through a task force to improve the accuracy of broadband mapping which is used to determine allocation of federal funding subsidies for unserved and underserved areas.
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