i2Coalition October 2020 Legislative Brief

Your quick update on important Internet policy issues

OUTLOOK 

The Presidential election, now in its final stretch, dominates attention in Washington, along with whether Congress and the White House can reach agreement on an additional  COVID-19 relief package before November 3. The Senate does expect to vote before the election on confirming Supreme Court nominee Judge Amy Coney Barrett. 

Among tech policymakers, the focus on Section 230 reform and Big Tech antitrust has continued to intensify. While Congress is not expected to pass major legislation on these issues this year, the tech sector continues to monitor efforts to pass the EARN IT Act. The Section 230 reform and Big Tech antitrust debates are bipartisan priorities and will carry over to the next Congress and Administration even if the November 3 election produces significant changes in party control. 

Section 230/Intermediary Liability.  Additional Section 230 reform bills have been introduced in Congress, including a House companion bill to the Senate EARN IT Act sponsored by Rep. Sylvia Garcia (D-TX) and Rep. Ann Wagner (R-MO).  Also, Rep. Jan Schakowsky, Chair of the House E&C Subcommittee on Consumer Protection & Commerce circulated a draft online consumer protection bill.  Section 230’s protections would not apply to violations of Schakowsky’s measure which would be enforced by the FTC and also authorize private rights of action.  On October 15 FCC Chairman Ajit Pai tweeted a statement that he intended to move forward with an FCC rulemaking to “clarify” the meaning of Section 230. The Senate Commerce Committee has scheduled a November 10 confirmation hearing for Nathan Simington, nominated by President Trump to replace FCC Commissioner Michael O’Rielly. As a NTIA senior adviser, Simington played a key role in crafting the NTIA Section 230 Petition filed at the direction of the President’s social media Executive Order and which requested that the FCC launch the 230 rulemaking. 

Copyright. Senate Judiciary IP Subcommittee Chair Senator Tillis plans to circulate a discussion draft DMCA reform bill in the coming weeks now that his Subcommittee’s series of hearings on the matter are nearly complete. The House Judiciary Committee is assessing next steps on DMCA reform for the next Congress following the hearing it held on September 30 about the Copyright Office Section 512 report. 

Federal Privacy. The Senate Commerce Committee held a hearing on September 23 focused primarily  on the need for comprehensive federal privacy legislation and the sticking points–federal preemption and private rights of action–which have blocked progress. Senate Commerce Chairman Wicker introduced a federal consumer data privacy bill on September 17. Wicker wants to hold a future hearing focused on the EU Privacy Shield issues. Staff at the U.S. Department of Commerce continue to work with their EU counterparts toward a new arrangement for transatlantic data flows. 

Antitrust/Competition. The CEOs of Google, Facebook and Twitter, facing potential subpoenas from the Committee, voluntarily agreed to testify on Section 230, data privacy, and media consolidation before the Senate Commerce Committee on October 28. The Senate Judiciary Committee reportedly may subpoena the CEOs of Twitter and Facebook to testify in connection with their handling of New York Post articles that made allegations about candidate Biden. On October 6 the House Judiciary Antitrust Subcommittee released its long-anticipated, 450-page Big Tech (Amazon, Apple, Facebook, Google) antitrust investigation report with findings and recommendations. Subcommittee Chairman David Cicilline (D-RI) plans to offer legislation based on the report before the end of this year.  The DOJ antitrust lawsuit against Google is expected to be filed in the near future, and  DOJ has been briefing state AGs on the matter.  A bipartisan group of state AGs reportedly may move ahead with their own lawsuit against Google even after DOJ files its lawsuit. 

Broadband. The next Congress will continue efforts (made more urgent due to COVID-19) toward closing the digital divide by expanding and improving access to broadband in rural and low income areas, especially for telehealth, online learning, and remote working. The scope of funding and specific support mechanisms proposed may change based on the outcome of the November election, but the issue will remain a policy priority.  

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