Emerging Technologies Washington Update

January 10, 2019

Pardon Our Dust

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Week in Review

The 116th Congress convened last Thursday afternoon with Rep. Nancy Pelosi (D-CA) winning her bid for a second stint as Speaker of the House. Under the new Democratic majority, the House passed a pair of Senate-passed bills to fund through September 30 all departments and agencies closed in the partial shutdown, with the exception of the Department of Homeland Security, which would be funded through February 8. Senate Majority Leader Mitch McConnell (R-KY) didn’t bring the bills to Senate floor, however, absent the President’s support for legislation that doesn’t include $5 billion to build a border wall.

The standoff continued throughout the week with the President delivering an Oval Office address on Tuesday evening on the need for a wall followed by a rebuttal from Pelosi and Senate Minority Leader Schumer (D-NY). The pair, with Republican leadership, went to the White House on Wednesday afternoon for what ended up being a brief meeting with the President that did not yield any progress. Today, the President visits the southern border to again make the case for a wall.

In the meantime, House leaders are bringing four separate funding bills (Financial Services, Agriculture, Interior, and Transportation-Housing Urban Development) to the floor that largely mirror Senate-passed legislation. The Financial Services bill passed last night 240-188, drawing eight Republicans. The House takes up the Agriculture and Interior bills today. The President has threatened to veto them.

On the other side of the Capitol, Senate Democrats are likely to block all legislation unrelated to ending the government shutdown; on Tuesday evening, a motion to proceed to Middle East policy legislation failed.

With the Senate Republican conference ratifying committee leaders for the 116th Congress, subcommittee leadership is beginning to take shape. The Senate Appropriations Committee announced on Wednesday that Senator John Kennedy (R-LA) will chair the Subcommittee on Financial Services and General Government, which has jurisdiction over the Federal Trade Commission and Federal Communications Commission. He replaces Senator Lankford (R-OK), who relinquished his subcommittee gavel to take a seat on the Senate Finance Committee. Senator Coons (D-DE) is the ranking member. On the House side, Speaker Pelosi (D-CA) announced that Reps. Barragan (D-CA), Blunt Rochester (D-DE), Kelly (D-IL), Kuster (D-NH), McEachin (D-VA), O’Halleran (D-AZ), Soto (D-FL), and Veasey (D-TX) will join the Energy and Commerce Committee.

Elsewhere, Rep. Doug Collins (R-GA), the new ranking member on the House Judiciary Committee, introduced legislation today targeting FCC broadband subsidies distributed through the Connect America Fund (CAF). The Connect America Fund Accountability Act increases reporting requirements for providers that receive CAF funds based on complaints that rural areas are not experiencing speeds that providers are reporting. Collins also plans to reintroduce the Gigabit Opportunity Act to create tax incentives for investing in broadband in low-income areas.

Looking Ahead

As negotiations to reopen the government continue, the Senate Judiciary Committee will hold confirmation hearings next Tuesday and Wednesday for William Barr, the President’s nominee to succeed Jeff Sessions as Attorney General. They will be the first hearings under the leadership of the Committee’s new chairman, Senator Lindsey Graham (R-SC).

Senate floor action looks to be on hold for the time being subject to Leader McConnell (R-KY) bringing up any bills to reopen the government. Aside from the stalled Middle East policy bill, McConnell is teeing up a bipartisan lands bill sponsored by Energy and Natural Resources Committee Chairman Lisa Murkowski (R-AK) and former Ranking Member Maria Cantwell (D-WA).

House Democrats are also preparing an emergency funding bill to provide relief to areas impacted by recent natural disasters, including Puerto Rico. It’s unlikely to gain traction in the Senate, where leaders want to include emergency funding in a broader spending bill.

The Senate Commerce Committee, now under the leadership of Chairman Wicker (R-MS) and Ranking Member Cantwell (D-WA), will hold its organizational meeting next Wednesday at 10:00 AM. Wicker indicated last week that the Committee’s first hearings of the 116th Congress are likely to focus on privacy and 5G. Senate leaders are also planning their policy retreats, with the Republican meeting set for January 17 and the Democrats expected to meet at the end of the month.

California DOJ Kicks Off Consumer Privacy Law Implementation Process

The California Department of Justice convened the first in a series of public forums this week to inform the rulemaking that will implement the California Consumer Privacy Act (CCPA), the most sweeping state consumer privacy law on the books to date. The listening sessions provide an opportunity for the public and private sector to share input, either by presenting at the forums or by submitting written comments, on the forthcoming regulations. Businesses must comply with CCPA by January 1, 2020, but Attorney General Xavier Becerra cannot begin enforcement until six months after the regulations are promulgated, or July 1, 2020, whichever comes first. Becerra’s efforts to formally seek public input, which is required by CCPA, indicates the state aims to have regulations in place in time to begin enforcement as close to January 1, 2020 as possible.

Approximately 150 groups attended the first forum. Attendees largely represented the business community, with few privacy advocates in attendance. Notably, Alastair Mactaggart, who funded and organized an effort to secure a ballot measure that prompted the state legislature to pass CCPA, did not attend. The Department of Justice will hold five more sessions around the state in January and February.

In the wake of CCPA and similar laws in states like Colorado and Vermont, as well as the European Union’s General Data Protection Regulation (GDPR), US regulators and lawmakers are actively exploring a federal consumer privacy framework to prevent a patchwork of state requirements. The Senate Commerce Committee held a series of hearings last year on different approaches to privacy regulation under then-Chairman Thune (R-SD); his successor, Chairman Wicker (R-MS), has been public about his plans to pursue legislation. Privacy legislation is also near the top of the agenda for new House Energy and Commerce Committee Chairman Pallone (D-NJ). The Administration, through the National Telecommunications and Information Administration (NTIA), is also exploring a potential federal framework, though bipartisan leaders in both chambers have made clear their belief that Congress should use its authority to drive the process.

Former Rep. Issa and Commissioner Ohlhausen Headline CES Consumer Privacy Panel

Yesterday former Republican Federal Trade Commissioner Maureen Ohlhausen, now in private practice, provided opening remarks during a CES panel on “American Privacy Regulations in a Post-GDPR World.” She discussed FTC oversight of the technology industry, citing specific investigations as examples of its efforts to deter companies from adopting unreasonable data security practices. She commended the Commission for pursuing broader privacy standards and avoiding policies based on specific technologies or data ownership. She concluded her remarks by noting the FTC will continue to use its tools and resources available to maintain oversight of industry regardless of whether lawmakers enact a federal privacy law this Congress.

Ohlhausen then joined a panel of stakeholders to discuss the future of privacy regulations in the United States. Former Congressman Darrell Issa (R-CA) replaced NTIA Administrator David Redl, who was unable to attend due to the ongoing partial government shutdown. Issa emphasized the need to scale down the scope of consumer privacy and focus more on protecting sensitive information. He dismissed the notion that users should have a right to be forgotten on the internet, but agreed with fellow panelists that there should be standard responsibilities for companies. Michelle Richardson, Director of Privacy and Data Projects for the Center for Democracy and Technology, rebutted some of Issa’s claims. She emphasized the need to alleviate privacy burdens from consumers and instead place them upon companies.

The panel also discussed how the U.S., EU, and China employ different approaches to privacy.  Ohlhausen suggested the three are not entirely disparate, but rather share commonalities in their conceptions of consumer protection. While the speakers took turns agreeing and disagreeing on topics throughout the discussion, all agreed that privacy and consumer protection will remain hot button issues for federal and state governments this year.

Reps. Olson, Kelly Discuss Artificial Intelligence

Congressional Artificial Intelligence Caucus Co-Chair Pete Olson (R-TX) and Rep. Robin Kelly (D-IL) discussed the potential impact of artificial intelligence (AI) and the role of government oversight earlier today during a Washington Post LIVE panel discussion. Kelly and Olson were joined by former Obama Administration Chief Technology Officer Megan Smith.

Throughout the discussion, Olson, Kelly, and Smith underscored the importance of both expanding STEM courses in primary schools and leveraging non-traditional education through community colleges, vocational institutions, and certificate programs to arm American workers with the skills necessary to fulfill jobs shaped and created by AI. Rep. Kelly added that many businesses in her district struggle to find workers to fill high-skilled jobs and emphasized the need to address skyrocketing student debt and existing student loan programs to ensure individuals have the resources necessary to pursue opportunities in AI. Panelists went on to discuss the need to resolve potential biases and privacy concerns with AI, underscoring the importance of transparency in the use of AI.

During the discussion, Rep. Olson referenced the FUTURE of Artificial Intelligence Act, bipartisan, bicameral legislation introduced last Congress that would establish a federal advisory committee under the Department of Commerce to advise the agency on all matters relating to the development of AI. The legislation has not yet been reintroduced in the 116th Congress. Olson added that the Congressional AI Caucus will continue to work in 2019 to ensure that policymaking keeps pace with AI development.