i2Coalition Sept. 2022 Legislative Brief
This is your brief update on important Internet policy issues. More detailed information is available to members in the i2Coalition Sept. 2022 Legislative Brief.
In the last days of September, the U.S. Congress focused on the need to pass a short-term Continuing Resolution (CR) by October 1 to fund the federal government and avert a shutdown. The CR ultimately did not include controversial environmental permitting reform legislation, notwithstanding a side agreement for its inclusion in the CR that Senator Joe Manchin (D-WV) reached with Senate Majority Leader Chuck Schumer (D-NY). Its inclusion was linked to Manchin’s earlier vote in favor of the recently enacted Inflation Reduction Act. A growing bipartisan chorus in the House and Senate made clear that they opposed the inclusion of Manchin’s permitting reform provision in the CR. It was removed to clear the way for the CR to pass and avoid a government shutdown. With the CR approved, House and Senate members will leave Washington to campaign for midterm elections on November 8. The election results will determine political control of the House and Senate in the next Congress starting in January. With numerous tight races in key states and the desire to maximize campaigning time with voters, Congress does not plan to return to Washington for legislative business until the “lame duck” period starts after the November 8 election.
TECH POLICY PRIORITIES
Section 230/Intermediary Liability. Recent federal appeals court decisions have positioned the U.S. Supreme Court in its new term to resolve a split among circuits and review the scope of Section 230 of the Communications Decency Act and address the First Amendment rights of Internet entities, including websites, platforms, and apps. The State of Florida is appealing to the U.S. Supreme Court the decision of the U.S. Court of Appeals for the 11th Circuit that struck down Florida’s social media law. As part of this appeal, Florida is citing the September 16 decision from the 5th Circuit Court of Appeals upholding the Texas social media law, which designates social media platforms as common carriers and allows lawsuits against the platforms for alleged censorship. In Congress, House Republicans have announced that Section 230 reform is a key part of their Big Tech agenda next year. President Biden again called for fundamental Section 230 reform in a September 15 speech and in White House policy principles for tech platform accountability released on September 8. As expected, policymaker and voter alarm about political bias, censorship, misinformation, and disinformation on social media platforms has intensified with the midterm elections drawing near.
Federal Privacy. Movement continued to stall on federal comprehensive consumer data privacy legislation in September. In the House, Speaker Nancy Pelosi (D-CA) and other House members from California declared their opposition to H.R. 8152, the American Data Privacy and Protection Act, citing preemption concerns. The supporters of H.R. 8152 may still attempt to resolve disputes and try to move the bill during the lame duck Congressional session. Even if modified further and passed in the House during the lame duck session, it is unclear if H.R. 8152 would be acted upon in the Senate. The FTC will accept public comments this fall on a wide range of issues raised in its Advanced Notice of Proposed Rulemaking on commercial surveillance and data security. The agency also held a day-long public forum on this topic on September 8.
Copyright/IP. On October 4, the Copyright Office (CO) will hold its final plenary stakeholders session on the potential development of Standard Technical Measures (STMs) under Section 512 of the DMCA to identify or protect copyrighted works online. The CO will continue to assess its findings from the series of STM public consultations it held and report back to Congress with recommendations. The Senate Judiciary IP Subcommittee held a CO oversight hearing on September 7, at which the Register of Copyrights highlighted a number of the CO’s recent accomplishments and answered Senators’ questions about topics including the possible implementation of STMs and fair use.
Antitrust/Competition. On September 22, the Senate Judiciary Committee approved the Journalism Competition and Preservation Act. The bill’s markup had been delayed until its sponsors, Senator Amy Klobuchar (D-MN) and Senator John Kennedy (R-LA), negotiated with Sen. Ted Cruz (R-TX) on an amendment to the bill to make clear that negotiations between publishers and covered platforms should only focus on “price” and to expressly prohibit discussions on how a platform displays, ranks, distributes or curates online content. Senator Jon Ossoff voted to advance the bill but noted a concern he has about its potential adverse impact on the fair use doctrine in U.S. copyright law. Senator Ossoff expressed his intention to work with Senator Klobuchar to address his concern prior to Senate floor consideration.
Broadband. On September 29, the U.S. won a key and resounding victory with the election of Doreen Bogdan-Martin to lead the UN’s International Telecommunications Union for the next four years. She defeated the Russian candidate. In the secret ballot by countries, Bogdan-Martin received 139 of the 172 votes. Her election is seen as pivotal to bolstering the U.S.-led vision of a global, open Internet and the multistakeholder policy-making model against authoritarian countries’ government-controlled approach. The ITU sets global standards for telecommunications and tech infrastructure. In the U.S., the NTIA and FCC are continuing intensive efforts to roll out existing and new broadband funding programs. The NTIA updated its BroadbandUSA’s federal funding site in September to make it easier for potential state and local governments to find funding opportunities and information to support broadband planning, digital inclusion, and deployment projects.
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