Emerging Technologies Washington Update

Week in Review

The House and Senate both returned to Washington on Tuesday to begin a post-election, lame duck session. In the lower chamber, House members considered a number of bills under suspension as well as a measure to remove the grey wolf from the Endangered Species list. Meanwhile, the Senate took up Michelle Bowman’s nomination to sit on the Federal Reserve Board of Governors and a Coast Guard reauthorization bill that has already passed the House. On Monday, Senate Commerce Committee Chairman John Thune (R-SD) and Senate Environment and Public Works Committee Ranking Member Tom Carper (D-DE) announced an agreement on a reauthorization bill through FY19, teeing up a cloture vote of 92-5 on Tuesday and final vote of 94-6 to pass the bill on Wednesday. The chamber will vote to confirm Bowman Thursday afternoon.

On Wednesday, both House and Senate Republicans and Senate Democrats held leadership elections. As expected, Majority Leader Mitch McConnell (R-KY) was re-elected to represent the Conference as Leader and Senator John Thune was elected to replace term-limited Senator John Cornyn (R-TX) as Majority Whip. Senator Joni Ernst (R-IA) beat Senator Deb Fischer (R-NE) in the only contested leadership race to serve as Conference Vice Chair. Additionally, Senators John Barrasso (R-WY), Roy Blunt (R-MO), and Todd Young (R-IN) were elected to join Senate Republican leadership ranks. On the House side, Leader Kevin McCarthy (R-CA) was elected House minority leader, beating Rep. Jim Jordan (R-OH) in a 159-43 vote, and Rep. Steve Scalise (R-LA) was elected Minority Whip. Reps. Liz Cheney (R-WY), Tom Emmer (R-MN), Gary Palmer (R-AL), Mark Walker (R-NC), and Jason Smith (R-MO) will also join the House Republican leadership team. 

Democratic Senate leadership remained the same, with Minority Leader Chuck Schumer (D-NY) re-elected Leader. In the lower chamber, House Democrats held their first caucus meeting since the midterms, but leadership elections are not expected until after the Thanksgiving recess.

The Week Ahead

Both chambers will be out next week for the Thanksgiving recess. Upon return to Washington, the House and Senate will likely turn to the farm bill, which bipartisan, bicameral negotiators continue to conference, and the remaining FY19 appropriations measures. Spending authority for Transportation-Housing and Urban Development (THUD), Commerce-Science-Justice (CJS), Agriculture, and Financial Services programs is set to expire on December 7. Senate Republican leadership is slated to meet with President Trump Thursday afternoon before the chamber adjourns for the week-long recess to discuss appropriations and specifically the President’s desire to secure funding for a border wall.

Senate Scrambles as DOT Moves Forward with AV Actions

As both chambers begin the lame duck session, Senators are under heightened pressure to move on driverless car legislation before the end of the year and the accession of new Democratic House leadership. While Senate Commerce Chairman John Thune (R-SD) expressed optimism before the midterm election that the upper chamber could move the Committee’s AV START Act, S. 1885, to the floor this year, momentum slowed when the Senate adjourned in mid-October. AV START was first passed out of the Commerce Committee in October 2017; however, the bill has since stalled amid safety and security concerns from some Senate Democrats stemming largely from notable accidents involving automated cars. Of note, House successfully passed the Energy and Commerce Committee’s SELF DRIVE Act, H.R. 3388, by voice vote in September 2017. If the Senate does not take action before the end of the year, new Congressional leadership will likely delay movement on AV legislation in the 116th Congress.

While the outcome of driverless car legislation this year remains unclear, the Department of Transportation has moved forward on a number of actions to advance AV technology. On October 4, Secretary of Transportation Elaine Chao unveiled Preparing for the Future of Transportation: Automated Vehicle 3.0 (AV 3.0), which for the first time brings trucks and public transit (buses and light rail) into the Department’s automated surface vehicles policy. Public comments on AV 3.0 may be filed until December 3 in docket DOT-OST-2018-0149. DOT also announced five additional actions for which it would seek public comment:

• DOT-OST-2018-0150  (83 Fed. Reg. 50747)(Oct. 9, 2018)– DOT requested comments on a joint initiative of the Departments of Transportation, Labor, and Commerce to evaluate the impact of automated vehicles on the workforce.  Comments were due November 5. 
• NHTSA-2018-0092 (83 Fed. Reg. 50872 )(Oct. 10, 2018)– The National Highway Traffic Safety Administration (NHSTA) initiated an advanced notice of proposed rulemaking (ANPRM) seeking comment on designing a national pilot program to facilitate, monitor, and learn from testing and development of emerging advanced driving technologies.  Comments are due November 26.
• FMCSA-2018-0037 (83 Fed. Reg. 12933)(Mar. 26, 2018)– The Federal Motor Carrier Safety Administration (FMCSA) initially sought comments by May 10, 2018 on how to accommodate automated driving systems (ADS) in commercial motor vehicles.  After the Secretary’s announcement in October, FMCSA reopened the opportunity to provide comments and held three listening sessions around the country on June 19, July 12, and August 24.  Based on public comments and these three listening sessions, FMCSA will publish an ANPRM to address the allocation of responsibilities between Federal and State governments over ADS-equipped commercial motor vehicles and commercial carriers.  
• NHTSA will soon issue a proposed rule to allow for exemptions from certain Federal Motor Vehicle Safety Standard (FMVSS) for ADS-equipped vehicles provided that a human driver is present.
• NHTSA will also seek comment on a proposal to streamline and modernize the NHTSA exemption process

NIST Initiates Public Comment Period on Privacy Framework 

On Wednesday, the National Institute of Standards and Technology (NIST), an agency of the Commerce Department, published a notice in the Federal Register seeking comments on “Developing a Privacy Framework.”  83 Fed. Reg. 56824.  Comments are due by December 31.

In the notice, NIST states it is “developing a forward-thinking approach that supports both business innovation and strong privacy protections[‘]”  intended to assist organizations’ enterprise risk management.  The Framework “is envisioned to consist of outcomes and approaches that align policy, business, technological, and legal approaches to improve organizations’ management of processes for incorporating privacy protections into products and services.”  It is a voluntary Framework developed “to help organizations: better identify, assess, manage, and communicate privacy risks; foster the development of innovative approaches to protecting individuals’ privacy; and increase trust in products and services.”  The NIST notice refers to a parallel effort by the National Telecommunications and Information Administration (NTIA) to develop a set of privacy principles.

NIST first announced plans to host a series of public workshops aimed at developing a voluntary privacy framework in September. The Agency will be holding a live webinar on the framework on November 29.

Lawmakers Look to Address Consumer Privacy

As lawmakers returned to Washington this week, news broke that the Senate Commerce Committee is considering scheduling one more hearing in December to address consumer privacy. The potential hearing aligns with recent efforts led by Chairman John Thune (R-SD), who has acknowledged that he is working with committee staff on a federal privacy bill. While Thune is leaving the committee to become Senate Majority Whip, his likely successor Senator Wicker (R-MS) told press this week he is open to continuing these existing efforts on privacy issues. Along with infrastructure, Wicker noted that data privacy will be a priority for the committee in 2019.

Consumer privacy remains a hot button issue among lawmakers in both chambers. Just this month, Senator Wyden (D-OR) released draft legislation entitled the “Consumer Data Protection Act.” Among other provisions, the bill would create a minimum privacy standard and establish a national Do Not Track system providing consumers the right to prohibit third-party companies from tracking them across platforms, selling their data, and targeting advertisements based on personal information. The bill would also authorize the issuance of first offense fines to businesses guilty of misconduct and permit sentencing for criminal penalties up to twenty years for senior executives.

In a press release issued November 1, Senator Wyden noted that “it’s time for some sunshine on this shadowy network of information sharing. My bill creates radical transparency for consumers, gives them new tools to control their information and backs it up with tough rules with real teeth to punish companies that abuse Americans’ most private information.” The legislation already gained support from several consumer advocacy groups. Justin Brookman, Director of Privacy and Technology Policy at Consumers Union called the bill “an important and thoughtful contribution to the long overdue debate we’re having about privacy law in America.”

President Trump Raises Antitrust Concerns

On Monday, President Trump took to Twitter to echo concerns raised by the American Cable Association (ACA) over alleged Comcast-NBCUniversal antitrust violations, as outlined in a November 6 ACA letter to the Department of Justice (DOJ). The tweet marks the latest in a series of comments by the President expressing concern over the conduct of large digital and telecommunication companies.

DOJ Assistant Attorney General for Antitrust Makan Delrahim suggested the Administration is taking a more methodical approach. “As far as what we do, and our enforcement, we need the evidence, we need the economics, we go to court. Politics, that goes on between various aspects of the government, don’t affect our decisions to make these cases,” Delrahim stated in a recent interview with CNBC. 

Likewise, Republican Federal Trade Commissioner Noah Phillips cautioned against the broad application of antitrust authorities. During a recent interview with C-SPAN, Phillips discussed allegations President Trump and other Republican lawmakers have made regarding biased filtering practices by social media platforms. He noted that “we need to be very careful about using tools of law enforcement to address problems like that. With respect to the FTC, I don’t know that we have either any particular capability or mandate to do so.” Phillips’ remarks complement efforts by the Federal Trade Commission (FTC) to examine antitrust law and consumer protection in its ongoing series of hearings on “Competition and Consumer Protection in the 21st Century.”