i2Coalition October 2019 Legislative Update

Your quick update on important Internet policy issues.
For more in-depth updates, we welcome you to join the i2Coalition.

OUTLOOK 

The House and Senate started the month of September with two weeks in session. 

The Senate continued with nominations. Democrats rallied to repeal of the Emergency Designation of the Southern Border instruct the conferees of the, and then pass a Continuing Resolution (or “CR”). The Senate Appropriations Committee focused on marking up four more FY2020 spending bills next week: Interior-Environment, Commerce-Justice-Science, Homeland Security and Legislative Branch.

The House and Senate then went out of session for two weeks.

At the end of September, President Trump signed the short-term spending bill that averts a government shutdown and extends current funding levels and programs through November 21. The continuing resolution, H.R. 4378, buys more time for bicameral negotiations on a dozen fiscal 2020 spending bills that would provide updated funding levels for 15 federal departments and dozens of smaller federal agencies.

Finally, at the end of the month, Speaker Pelosi announced the House would begin an impeachment inquiry investigating President Trump’s interaction with the President of Ukraine.

Most important to our membership is the Energy and Commerce leaders announced a hearing examining Section 230 on October 16. We will be following this issue closely, offering contributions, and keeping our members informed.

ISSUES                  

Trade:      

·      USMCA – U.S. Trade Representative Robert Lighthizer sent House Democrats a new offer on the stalled USMCA to resolve their concerns about the trade deal and put it to a vote. House Ways and Means Chairman Richard Neal (D-MA) said there has been significant progress on two of four issues that Democrats sought to change, but the sticking point is still labor enforcement.  House Democrats made a counteroffer to USTR Lighthizer on the stalled USMCA, a sign that the deal could be on track for congressional approval this fall. Ways and Means Chairman Richard Neal (D-MA) said after meeting with Lighthizer that their offer covers all four areas on which Democrats expressed concern, including labor, environmental, enforcement, and drug patent protections. Neal said Lighthizer’s response was “favorable,” but the administration plans to “digest it” over the next two weeks while Congress is in recess.

Section 230:  

·      Schatz Legislation – Sen. Brian Schatz (D-HI) announced that he has made progress in studying potential changes to Section 230 of the Communications Decency Act. He said he’s had study sessions and briefings with staff and doesn’t have a bill to introduce just yet but that he expects to be able to introduce something within the next month or so.  

·      Manchin Legislation – Sen. Joe Manchin (D-WV) has a bill aimed at combatting illegal online opioid sales by amending Section 230. Manchin has previously discussed the idea of creating a carve out so that websites can be held liable for such sales amid concerns that companies aren’t doing enough to clean up their platforms.    

·      Senate – Majority staff re-confirmed what was indicated in Chairman Wicker’s statement at last month’s hearing – they are not looking to make substantive changes to Section 230 any time soon.   Minority staff agreed, but they suggested that industry needs to think “creatively” on potential ideas – including best practices that would aim to reduce prevalence of online content that promotes extreme violence/stalking/harassment – outside of Section 230.  We may continue to see individual Senators introduce legislation targeted at social media platforms but these bills are unlikely to move forward. 

·      House – E&C staffers remain more tight-lipped on section 230. Not much insight shared beyond what the E&C Subcommittee might be doing beyond the recent Pallone-Walden letter to USTR regarding the Section 230 provisions in the USMCA.   Ways and Means staff are aware that Members are on both sides of the issue on whether Section 230 should be included in USMCA. Dems are careful to point out that efforts are being put into the four buckets of labor, environment, enforcement and drug pricing. Section 230 is not included (by omission) in conversations about what the Caucus is working through. 

·      FOSTA Challenge – The U.S. Court of Appeals for the District of Columbia Circuit heard arguments in a dispute over the validity of FOSTA, which made changes to Section 230 when it was signed into law in 2018. Those challenging the law argued that the change jeopardizes constitutionally protected free speech and increases the risk of censorship. The decision could show what direction arguments around changing Section 230 liability could take.   

·       Energy and Commerce Hearing – Energy and Commerce leaders announced a hearing examining Section 230 on October 16. The joint C&T/CPAC Subcommittee hearing will cover “Corporate Responsibility Online, Consumer Protection & the Pros and Cons of Section 230 of the Communications Decency Act.” C&T Subcommittee Chairman Mike Doyle (D-PA) said, “We’re not rushing into it. It’s going to be a very slow, deliberative process.” He said Section 230 “is very important for the economy and we’re not going to be making any rash decisions.” But he didn’t indicate any legislation was coming soon. 

Privacy:  

• Hill Privacy Work: 
  • Eshoo/Lofgren Bill – The privacy bill authored by Reps. Anna Eshoo (D-CA) and Zoe Lofgren (D-CA) is being worked on, starting with some released draft principles. Eshoo has described the bill as very deep and broad, though she is still working out a few issues with Lofgren. Eshoo and Lofgren received more than 500 comments on their draft principles and are working their way through them now. Staff said they plan to write their legislation with small sections, so various provisions can easily be turned into amendments.  
  • House Legislation – There have been reports that the Energy and Commerce Democrats have sent draft privacy legislation to committee Republicans. The two sides have sat down throughout the August recess and last week to discuss moving forward on privacy, yet no hearings are scheduled in the foreseeable future.  They have agreed to keep the most difficult issues – private right of action and pre-emption – out of the discussion for now to see if they can come to agreement on other items.   The minority said they share draft language with stakeholders before any announcements made or bill introduced. We could see language soon. 
  • Senate Legislation – Senate Republicans are still attempting to get to a place where they can have a bipartisan agreement on privacy legislation, believing without it the measure would never make it to the Senate floor.  Senators are still proposing piecemeal privacy proposals, including Sen. Cory Gardner’s Protecting Privacy in our Homes Act and Sen. Marco Rubio (R-FL) recently urged Senate Commerce leaders in a letter to take up his bill, the American Data Dissemination Act, S. 142. The legislation, which has no cosponsors, would require the FTC to submit recommendations for privacy regulations to Congress, which would then be tasked with using that roadmap to pass laws.
• Administration Privacy Work: The European Commission launched discussions on with U.S. counterparts on a U.S.-EU agreement to allow police and investigators easier access to data stored with tech companies. The deal would enable law enforcement authorities in the EU to request data held by U.S.-based companies and on servers in the U.S., as well as allow U.S. authorities to do the same in Europe. Its main aim is to allow investigators and prosecutors easier access to messages held by Facebook, Facebook’s WhatsApp, Google, Microsoft and other messaging and communication services. A U.S.-EU agreement would aim to solve conflicts of law such companies face under the U.S. CLOUD Act and the EU’s current regime of mutual legal assistance treaties with the U.S. to exchange such data.

Techlash:  

• Senate Commerce Online Extremism Hearing – The Senate Commerce Committee is holding hearings to discuss the proliferation of extremist content online. Witnesses include Twitter, Google, and Facebook. The committee will also ask how the tech companies are working with law enforcement to identify and remove violence or threats found online, following the mass shooting in El Paso, TX in August where the shooter posted a manifesto online.
• Zuckerberg on the Hill – Facebook CEO Mark Zuckerberg conducted a round of meetings with Members of Congress and the administration. He reportedly sat down with top players in tech, including Reps. Collins (R-GA), Schiff (D-CA), Nadler (D-NJ), Cicilline (D-RI), and Walden (R-OR) and Sens. Schatz (D-HI), Warner (D-VA), Cantwell (D-WA), and Hawley (R-MO). He also spoke with Minority Leader McCarthy and President Trump. There were reports that most of the meetings went well, especially away from the public show that was his last Hill visit in 2018, though Sen. Hawley did heavily criticize Facebook following his meeting where he encouraged Zuckerberg to sell off WhatsApp and Instagram. 
• Senate Commerce Online Extremism Hearing – The Committee on Commerce, Science, and Transportation held a hearing on “Mass Violence, Extremism, and Digital Responsibility”. Witnesses for the hearing included: 1) Monika Bickert, Head of Global Policy Management at Facebook; 2) Nick Pickles, Public Policy Director at Twitter; 3) George Selim, Senior Vice President of Programs at the Anti-Defamation League; and 4) Derek Slater, Global Director of Information Policy at Google. 
• Facebook EU Hate Speech Case – The Court of Justice of the European Union made a landmark decision on October 3 that Facebook remove a defamatory post – not just in the country in question, but worldwide under the 2000 e-commerce directive. This has implications for platforms and the proactive tracking of defamatory content.
• Facebook DOJ Investigation – The Department of Justice is opening its own investigation into Facebook, even though the FTC already has one ongoing. The DOJ’s case will focus on conduct that’s separate from what the FTC is examining, according to a source at the Department. The two federal inquiries are in addition to investigations by state attorneys general and the House Judiciary Committee. Members of Congress were skeptical of the decision, saying that the two agencies need to learn how to work better together