i2Coalition November 2020 Legislative Brief

Your quick update on important Internet policy issues

OUTLOOK 

As of mid-November, a divided United States electorate is absorbing the aftermath of a close Presidential and Congressional election, Senate Republicans’ swift confirmation of a Supreme Court Justice to solidify a conservative majority on the bench, and a surge in the COVID-19 pandemic nationwide.

Presidential Election. The country elected the Democrat candidates former Vice President Joe Biden and California U.S. Senator Kamala Harris to be the next President and Vice President taking office on January 20, 2021.  President Trump has not yet conceded the election and has deployed lawyers in key states to contest close elections and to request several recounts.  President-elect Biden is moving ahead with transition plans regardless; his transition website outlines four “day one” priorities: the COVID-19 pandemic, economic recovery, racial equity, and climate change. Numerous leaders from other nations, including China, have publicly congratulated Biden on his victory. The results of the presidential election  will not be finalized officially until January 2021 pursuant to the electoral college process. 

Congress. The U.S. House remains in the Democrats’ control, but their majority shrank markedly due to unexpected seat losses. Control of the U.S. Senate will be determined after January 5, 2021, when both of Georgia’s Senate seats will go to a runoff in which Republican Senator Kelly Loeffler faces Democrat Raphael Warnock, and Republican Senator David Perdue faces the Democrat John Ossoff.   To continue funding the government, Congress will need either to extend the Continuing Resolution which expires on December 11 or pass a FY2021 Omnibus Appropriations Act that the President would agree to sign. 

Judiciary.  Just prior to the November election, with no support from Democrat Senators and one “no” vote from Maine Republican Senator Susan Collins, on October 26 the Senate voted 52-48 to confirm federal Judge Amy Coney Barrett as a Justice of the U.S. Supreme Court.  Her appointment fills the seat formerly held by Justice Ruth Bader Ginsburg and marks President Trump’s third successful appointment to the Court.  Democrats strongly decried the swift appointment of a Justice so close to a Presidential election. President Trump said he wanted to install a ninth justice in case the Court needed to to resolve election disputes. President Trump also hopes that by solidifying a 6-3 conservative majority with Barrett’s seating, the Court will, among other things, overturn the Affordable Care Act (“Obamacare”).  During her confirmation hearing before the Senate Judiciary Committee, Barrett sought to present herself as a neutral arbiter and was careful not to disclose how she would rule on specific cases.  Justice Barrett’s past legal academic writings and judicial opinions reveal a conservative outlook.

The tech sector can expect President-elect Biden’s governance to renew and potentially expand their  policy challenges, including Big Tech antitrust scrutiny, Section 230 reform, and comprehensive federal privacy legislation.  The anticipated Biden-led scrutiny of tech would be a major shift from the approach taken during the Obama Administration in which Biden served as Vice President. 

Section 230/Intermediary Liability.  President-elect Biden has said Section 230 should be revoked but has not elaborated on exactly how to do it. Biden has called out Facebook for not doing enough to curb disinformation.  Bipartisan efforts to reform Section 230 are certain to continue in the next (117th) Congress with likely reintroduction of many bills that were proposed in 2020 as well as new draft measures. 

Copyright.  Senator Thom Tillis (R-NC), who won re-election, plans to circulate a discussion draft DMCA reform bill in mid-December.  Ahead of releasing that draft, Senator Tillis has solicited feedback on a range of matters raised in Tillis’ series of Senate IP Subcommittee hearings on DMCA reform in 2020.  Prospects for Tillis’ proposed bill, which may constitute a wholesale rewrite of the DMCA, will depend upon Republicans holding control of the Senate following the January 5 Georgia runoff election. The House Judiciary Committee also expects eventually to resume consideration of DMCA reform in the 117th Congress but has not mapped out a schedule to date. 

Federal Privacy.  While the 116th Congress has not passed comprehensive federal privacy legislation, bipartisan interest in achieving this goal has grown and will carry over in the 117th Congress. Revamping federal privacy law presents a significant opportunity for the new Biden Administration and Congress to work together to achieve consensus, provided that cooperation prevails and partisanship submerges.  Incoming Biden Administration officials and staff in the Commerce Department will continue to negotiate with their European counterparts toward a new arrangement for transatlantic data flows in response to the Schrems II decision. 

Antitrust/Competition.  It is unclear whether the new Biden Administration will follow precisely in the footsteps of the Trump DOJ by continuing (without reviewing and independently assessing) the antitrust suit filed against Google.  Nonetheless, antitrust scrutiny of Google and the other major tech platforms will persist after Biden takes office and could result in the filing of additional antitrust lawsuits.  

Broadband. Expanding broadband access for rural and low-income households is a top Biden priority. Investing in “universal broadband” is part of the Biden transition plan’s goal to “[m]obilize American ingenuity to build a modern infrastructure.”  By shining a spotlight on the urgent need to close the digital divide as schools and businesses nationwide suddenly had to shift online, the COVID-19 pandemic has galvanized support for broadband expansion in the U.S. although approaches may differ in Congress among the parties.  With slim majority margins in both the House and Senate, achievement of that objective in the 117th Congress will depend on sustaining bipartisan cooperation. The Biden Administration can be expected to help broker federal legislative efforts to fund the expansion of broadband access in rural and low income areas, and also could pursue independent executive actions to help close the digital divide.

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