i2Coalition November 2019 Legislative Update

Your update on important Internet policy issues for the period spanning mid-October to mid-November 2019

OUTLOOK 

The House passed a temporary spending bill to keep the government running until Dec. 20, forestalling a government shutdown. Last week, the House voted on a number of veteran bills on suspension, and passed H.R. 4863, the United States Export Finance Agency Act of 2019 sponsored by Rep. Maxine Waters (D-CA). Public impeachment hearings also kicked off last week.

Late last month, in a 232-196 vote, the House passed a resolution laying out the rules that will govern its impeachment inquiry. Republicans were united in their opposition to the measure and were joined by two Democrats: Jeff Van Drew of New Jersey and Collin Peterson of Minnesota.

The Senate passed its first fiscal 2020 appropriations package at the end of October. This “minibus” includes the Agriculture-FDA, Commerce-Justice-Science, Interior-Environment, and Transportation-HUD measures. Senators did not reach the 60-vote requirement to advance a second spending package that included Defense, Energy-Water, Labor-HHS-Education, and State-Foreign Operations funds. Democrats opposed the measure amid disagreements over 302(b) subcommittee allocations and border wall funding. With the current stopgap funding measure set to expire on November 21, lawmakers said they could consider another CR (“Continuing Resolution”) that would run through early 2020. 

ISSUES                  

Section 230:    

• Energy and Commerce Hearing – The Consumer Protection and Commerce and Communications and Technology Subcommittees held a joint hearing titled “Fostering a Healthier Internet to Protect Consumers.” The hearing is another sign that E&C is seriously looking at the possibility of tweaking or even partially pulling back the liability shield. USTR Robert Lighthizer was invited to testify but declined. Witnesses included:  

o   Steve Huffman, Co-Founder & CEO, Reddit, Inc. 

o   Danielle Keats Citron, Professor of Law, Boston University School of Law 

o   Corynne McSherry, Legal Director, Electronic Frontier Foundation 

o   Hany Farid, Professor, University of California, Berkeley 

o   Katherine Oyama, Global Head of Intellectual Property Policy, Google, Inc. 

o   Gretchen S. Peters, Executive Director, Alliance to Counter Crime Online 

The joint Communications and Technology and Consumer Protection and Commerce Subcommittee hearing was a deep dive examination of Section 230 of the Communications Decency Act, part of the Telecommunications Act of 1996, and its applicability to today’s Internet, particularly as it applies to the take down of harmful content. Bottom line:  It doesn’t appear leadership on the Majority or Minority side plans to erode Section 230 liability protections anytime soon, but they repeatedly pressed for companies to “step up” and do a better job taking down harmful, offensive, false and illegal content. Democrats also asked questions on ways to “improve” Section 230. Witnesses included representatives from Reddit, Electronic Frontier Foundation, Google, Alliance to Counter Crime, and various academics.  

• Cruz Letter on Removing Section 230 Protections from Japanese Trade Agreement – Sen. Ted Cruz (R-TX) sent a letter to USTR Robert Lighthizer, urging the administration to remove the language from USMCA and the Japanese Trade Agreement that enshrines Section 230 liability protections for technology companies. Cruz wrote, “With members of both the Senate and House of Representatives seriously considering whether to amend or eliminate Section 230’s grant of immunity because big tech is not living up to its end of the legislative bargain, I believe that enshrining it in our trade agreements would be a mistake.” 
• Section 230 Update – Sen. Lindsey Graham (R-SC) said he’s discussing a possible update to Section 230 with Sen. Richard Blumenthal (D-CT). Sen. Graham didn’t discuss specifics but said he and Sen. Blumenthal have talked about revisiting Section 230 of the Communications Decency Act in an effort to better shield kids from predators online. He said that drafting legislation isn’t off the table, but that he hopes it doesn’t have to come to that.  

• Groups Oppose Section 230 Protection for AirBnB: A group of 19 community advocacy groups sent a letter to every member of the House and Senate urging them to support the bipartisan Protecting Local Authority and Neighborhoods Act introduced by Rep. Ed Case (D-HI) in September. The bill would provide a narrow clarification to Section 230 so that the provision would hold short-term rental platforms (including AirBnB and HomeAway) accountable when they facilitate illegal rental bookings. 
• Commission on Online Platforms and Terrorist Activity:  The House Homeland Security Committee plans to mark up legislation to create a non-government commission to examine how “online platforms have been utilized in furtherance of acts of targeted violence.” The measure, The National Commission on Online Platforms and Homeland Security Act would create a 12-member commission of non-government experts tasked with issuing recommendations on how to address online extremism within two years after first convening, and would have subpoena power. The House Homeland Security Committee has had an ongoing interest in the topic of online extremism, and in May sent a letter requesting information from tech companies on their efforts to fight terrorist activity and recruitment online. The letter was sent to FB, Twitter, Google and Microsoft. 
• Schatz Section 230 Reform Bill – Sen. Schatz (D-HI) hopes to share a draft bill with stakeholders before the Thanksgiving recess. Staff report that the draft attempts to target the truly bad actors – those who knowingly allow content that’s illegal or harmful and don’t take it down, or, those who intentionally set up sites that promote illegal/harmful content and hide under the Section 230 protection umbrella. The bill will also contain a content moderation section that isn’t tied to Section 230. This section would encourage or require companies to set up best practices on content moderation and potentially address the FTC’s role in this area. 

Cybersecurity:  

 Encryption Fight with Facebook – In a letter to Mark Zuckerberg, top law enforcement and national security officials in the U.S., U.K., and Australia warned that stronger privacy enhancements across the social network’s messaging services would dramatically hamper efforts to investigate and prevent crimes against children. They also call on Facebook not to follow through with its plans to deploy end-to-end encryption on services such as Messenger without first ensuring law enforcement could “obtain lawful access to content in a readable and usable format.” This underlines the ongoing conflict between government and tech companies on the correct balance of consumer privacy and security, with many governments concerned how technological advances could limit their ability to conduct investigations.  

Net Neutrality:  

Circuit Court Upholds Rollback of Net Neutrality – The D.C. Circuit Court of Appeals made a significant rollback of the FCC’s Obama-era net neutrality rules in October, largely upholding the Republican-led repeal, though the court ruled against the FCC’s attempt to broadly override state efforts to craft their own net neutrality rules. A FCC senior official told reporters the ruling leaves open the possibility of the FCC challenging state laws on a case-by-case basis. The ruling renewed the call on both sides of the aisle to pass net neutrality legislation, with Democrats advocating for the House-passed Save the Internet Act and Republicans asking Democrats to work on a bipartisan approach. 

Trade:      

• USMCA – In the first week of November, a Congressional Delegation led by Ways and Means Chairman Richard Neal (D-MA) traveled to Canada to meet with Prime Minister Justin Trudeau and the Canadian Minister of Foreign Affairs to discuss the trade agreement. Chairman Neal and four other Ways and Means Democrats had traveled to Mexico in late October to hear from government officials there about how they plan to carry out and pay for implementation of a landmark labor reform law that the country passed earlier this year.  The labor law is a commitment under the proposed USMCA and some U.S. officials have expressed dissatisfaction with Mexico’s progress in implementing it.  Chairman Neal reiterated the need for strong enforcement mechanisms for labor protections in both visits.  

Regarding progress on USMCA, on November 1st Speaker Pelosi said, “We’re on a path to yes, and I think every day brings us closer to agreement.” She said that the group of Democratic negotiators and the Trump administration are close to finalizing fixes to the trade deal that would allow for its passage.  She hopes to bring it up for a vote as soon as it’s ready, which she said could be next year, but hopefully sooner. Chairman Neal, who is leading the Democratic working group, said in the first week of November that the two sides made significant progress. He also called on AFL-CIO President Richard Trumka, Ambassador Lighthizer and committee staff to meet soon to resolve outstanding differences. Ways and Means member, Rep. Bill Pascrell (D-NJ) announced that he is leaning “no” on USMCA. While this announcement does not come as a complete shock, it marks the beginning of what we can expect will be ramped-up opposition from opponents to the trade agreement.  

Privacy:  

• Hill Privacy Work:  
  • House – 
    • E&C Staff delegation to EU – Last month, bipartisan E&C staff completed a staffdel to the EU to examine GDPR and to continue to deliberate on what elements should be included in a potential bipartisan federal privacy law that would continue to allow for free flowing trade between the two countries.  
    • Eshoo/Lofgren Bill – Reps. Anna Eshoo (D-CA) and Zoe Lofgren (D-CA) finally dropped their 132-page comprehensive privacy legislation, the Online Privacy Act. The bill would give users the rights to access, correct, delete or transfer any personal data about them; request human reviews of decisions made by algorithms; and require opt-in user consent for machine learning and artificial intelligence algorithms. The bill would also require companies to receive explicit consent before disclosing or selling personal information and would prohibit using third-party data to re-identify individuals. It also establishes an independent agency of 1,600 employees led by a Director that’s appointed by the President and confirmed by the Senate for a five-year term. 
    • House – Consumer Protection and Commerce Subcommittee Chair Jan Schakowsky (D-IL) said that she is hoping for a bipartisan agreement with Republicans on comprehensive digital privacy reform, but if one isn’t reached, she is prepared to move forward alone. Schakowsky said that they are getting closer to having Member-level meetings on digital privacy and once they can confirm a bipartisan bill they will release the draft.  
  • Senate –  
    • Senate Commerce Privacy Hearing – The hearing on privacy legislation originally slated for November has been pushed back to early December, showing that the committee still has work to do on the legislation. Chairman Roger Wicker (R-MS) said last week that the bill with Ranking Member Maria Cantwell (D-WA) will be out before the end of the year.  
    • Filter Bubble Bill – On Thursday, Sens. John Thune (R-SD), Richard Blumenthal (D-CT), Jerry Moran (R-KS), and Marsha Blackburn (R-TN) introduced the Filter Bubble Transparency Act, which would require online search engines and platforms to disclose when their services rely on algorithms to sort and prioritize information and offer users the option to use an unfiltered version of the service that doesn’t rely on user-specific profile data like geolocation or search history. 
    • Wyden Bill – Senator Ron Wyden (D-OR) introduced the Mind Your Own Business Act, which he described as the strongest-ever protections for private data, going even further than GDPR. The bill is a new version of the draft regulations he circulated last November, with additions made from the feedback he received within the last year. The bill still does not preempt state law, but it does propose jail time for company executives for lying to the FTC about privacy and data security matters. 
• Administration Work:  
  • FTC COPPA Review – The Federal Trade Commission will consider changes to the Children’s Online Privacy Protection Act, and has extended the comment deadline for its updated rulemaking on the Children’s Online Privacy Protection Act from October 23 to December 9. In July, the FTC put out a request for public comment on the implications of technology and social media on children’s privacy, safety and health, among other areas. These comments were addressed in an October 7 workshop with speakers including FTC Commissioners Christine Wilson and Noah Phillips; YouTube’s vice president of content partnerships; representatives from children’s advocacy groups including Common Sense Media and Campaign for a Commercial-Free Childhood; doctors, academics and educators; and others. 
  • U.S./U.K. Data Sharing Pact – Last month, the U.S. and U.K. reached an agreement to share electronic data to help law enforcement agencies with criminal investigations. The two governments agreed to lift restrictions for several types of investigations; not to target residents of the other country; and to ensure that disclosures through the U.S.-U.K. Bilateral Data Access Agreement are compatible with data protection laws. The agreement is the first to be reached under the U.S. Clarifying Lawful Overseas Use of Data Act. 
• Privacy Shield – The European Commission published their third review of the EU-U.S. Privacy Shield, finding that it has undergone significant improvements since the last review, turning it into a commercial success. The report also recommended further improvements, arguing that the U.S. Federal Trade Commission should share information about ongoing investigations with the Commission and European data protection authorities, and that the U.S. Department of Commerce should develop tools for detecting false claims of participation in the framework. 

Techlash: 

Twitter Bans Political Ads – Twitter is banning political advertisements from its platform, including those about candidates, elections and policy issues. This comes amid controversy that Facebook will continue to allow politicians to post advertisements that may contain false information. 

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