Emerging Technologies Washington Update

May 9, 2019

Pardon Our Dust

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This Week: House and Senate Committees continue consumer privacy discussions, key official says FAA will publish rule for remotely identifying drones by late July, Senate Judiciary Committee Chairman Graham backs reintroduced Honest Ads Act.

Week in Review

The House and Senate were both in session this week and on Tuesday, a group of Senate Republicans, including Judiciary Committee Chairman Graham (R-SC) and Senators Blackburn (R-TN), Cotton (R-AR), Cramer (R-ND), Crapo (R-ID), Grassley (R-IA), Lee (R-UT), McSally (R-AZ), and Perdue (R-GA), attended a White House briefing to hear about the President’s forthcoming immigration plan spearheaded by senior adviser Jared Kushner. On Wednesday, the President hosted a Cabinet meeting before flying to Florida to tour hurricane damage at Tyndall Air Force Base and then hold a rally. Today, he attends a second White House event on surprise medical billing.

Earlier today, National Telecommunications and Information and Administration (NTIA) Administrator David Redl resigned. The Senate confirmed Redl, a former Energy and Commerce Committee aide, by voice vote in November 2017.

Consistent with Majority Leader McConnell’s plan to move as many nominations as possible in the coming months, the Senate on Wednesday confirmed Kimberly Reed (President), former Rep. Spencer Bachus (R-AL), and Judith Pryor to serve on the Board of the Export-Import Bank, restoring a quorum and enabling the Bank to consider and process larger transactions. The Senate also voted to confirm Joseph Bianco to be US Circuit Judge for the 2nd Circuit and to move ahead with Janet Dhillon’s nomination to sit on the Equal Employment Opportunity Commission (EEOC). Today, the Senate votes on Michael Park’s nomination to also sit on the 2nd Circuit Court.

House and Senate committees are both moving ahead with the FY20 appropriations process this week with the House Appropriations Committee processing several bills: Labor, Health and Human Services, and Education; Legislative Branch; Military Construction and Veterans Affairs; and State and Foreign Operations. On the Senate side, appropriators continue to hear from department heads on the Administration’s FY20 budget request with an eye to beginning markups later this month once they receive top-line funding levels.

On Wednesday, the House voted unanimously to adopt the ACCESS BROADBAND Act, which would create a new Office of Internet Connectivity and Growth within the National Telecommunications and Information Administration (NTIA) aimed at connecting more communities to high-speed internet. Reps. Brooks (R-IN) and Tonko (D-NY) championed the measure. The Senate Commerce Committee will consider a number of bills related to broadband deployment, including one sponsored by Chairman Wicker (R-MS) and Senator Klobuchar (D-MN) that aims to improve coordination between the FCC, NTIA, and USDA to better distribute federal funds for broadband deployment.

Meanwhile, Reps. Blumenauer (D-OR), Doyle (D-PA), and Bonamici (D-OR) introduced the Preparing Localities for an Autonomous and Connected Environment (PLACE) Act, which would create a federally-funded clearinghouse within an institution of higher education to examine the secondary influences of autonomous vehicles (AVs). The bill authorizes $2 million annually for coordinated research to help understand how AVs can impact things like land use, transportation, real estate, and social equity.

Looking Ahead

The House and Senate are both in session next week with two weeks in Washington before the Memorial Day recess. Leader McConnell will continue to process pending judicial and executive branch nominations. In the meantime, Senate leadership continues to negotiate an aid package to deliver supplemental funding to disaster-stricken areas around the country, though funding for hurricane recovery in Puerto Rico remains a point of contention. Majority Leader McConnell (R-KY) said this week that he aims to pass a bill before the recess. The Senate may also hotline, or expedite consideration of, the TRACED Act, bipartisan legislation aimed at curbing abusive robocalls. Minority Leader Schumer (D-NY) endorsed the bill this week as its list of cosponsors neared 75, ensuring passage.

Next week, the House will take up legislation that packages together a number of bills aimed at lowering prescriptions drug prices. H.R. 987, the Strengthening Health Care and Lowering Prescription Drug Costs Act, which will include, among other bills, the CREATES Act, the Protecting Consumer Access to Generic Drugs Act, and the BLOCKING Act. This week, the House passed two bills, H.R. 1503 and H.R. 1520, which would update the FDA Orange and Purple Books, respectively, with the goal of making it easier for generics and biosimilars to reach the market.

House and Senate Committees Continue Consumer Privacy Discussions

Consumer data privacy was the primary focus of several congressional hearings this week. On Tuesday, the Senate Banking Committee held a hearing entitled “Privacy Rights and Data Collection in a Digital Economy.” Chairman Crapo (R-ID) convened the hearing for lawmakers to learn more about the foundational principles in the EU’s General Data Protection Regulation (GDPR) and whether certain provisions should be adopted in the U.S. There was bipartisan consensus that the concept of informed consent presents a challenge to ensuring consumer data protection. The Committee discussed how consumers could be overwhelmed with the amount of information available to them regarding their personal data and technology companies’ use of this information. Committee members also agreed that consumers should have the right to own their data and license it for use as they deem fit.

The same day, the Senate Appropriations Financial Services and General Government Subcommittee convened a hearing on the FY2020 Federal Communications Commission (FCC) and Federal Trade Commission (FTC) budget requests featuring testimony from FCC Chairman Ajit Pai and FTC Chairman Joseph Simons. While Committee members questioned Pai and Simons on a range of topics, including efforts to mitigate a rise in domestic and international robocalls, 5G deployment, and plans to address increased contraband cell phones in prisons, much of the discussion centered on current and future consumer privacy oversight and enforcement. During the hearing, Senator Moran (R-KS) referenced ongoing efforts in the Senate Commerce Committee working group on draft federal consumer privacy legislation and asked Chairman Simons how he would expect the agency’s resource needs to change if a federal privacy framework similar to the European Union’s General Data Protection Regulation (GDPR) were implemented in the U.S. Simons explained that he would expect the agency’s resource needs to drastically increase. He cited the fact that the UK’s privacy enforcement agency currently employs over 500 officials to assist with GDPR enforcement, whereas the FTC currently employs 40 enforcement officials. Chairman Simons agreed that the agency would benefit from increased resources as well as a narrow, thoughtful expansion of FTC authorities.

The next day, the House Energy & Commerce Subcommittee on Consumer Protection and Commerce convened a hearing on “Oversight of the Federal Trade Commission: Strengthening Protections for Americans’ Privacy and Data Security.” The hearing featured testimony from Republican FTC Chairman Joseph Simons, as well as Republican Commissioners Noah Phillips and Christine Wilson and Democratic Commissioners Rohit Chopra and Rebecca Kelly Slaughter. The hearing primarily focused on the development of a federal consumer privacy framework. While all commissioners agreed on the need to advance a federal framework, Commissioners Chopra and Slaughter advocated for enabling some state-level jurisdiction and urged policymakers to consider the negative consequences of federal preemption. All of the commissioners supported expanding FTC authorities and increasing agency resources.

Despite the continued enthusiasm within both parties to develop a federal privacy framework, lawmakers have yet to introduce a comprehensive proposal. Earlier this week, Senator Coons (D-DE) indicated that Senate Judiciary Committee members are planning to convene a working group meeting to discuss data privacy. Meanwhile, the Senate Commerce Committee privacy working group has expanded its membership to include Senators Thune (R-SD) and Cantwell (D-WA), but has not released legislative language to date. Committee Chairman Wicker (R-MS) has indicated his intent to draft and mark up the Committee’s bipartisan data privacy bill before the August recess.

Key Official Says FAA Will Publish Rule for Remotely Identifying Drones by Late July

On Wednesday, Jay Merkle, Executive Director of the FAA Unmanned Aircraft Systems (UAS) Integration Office, said during a Senate Commerce, Science, and Transportation Committee hearing on new entrants into the national airspace that the FAA is committed to publishing a proposed rule for remotely identifying drones by July 21. Congress directed the FAA to establish standards for remote identification in the 2016 FAA extension.

Additional FAA rulemakings to enable expanded commercial drone operations, including those over people, at night, and beyond the visual line of sight, have been on hold until such standards are in place. A notice of proposed rulemaking for operations over people and at night published this February states that “the FAA plans to finalize its policy concerning remote identification of small UAS—by way of rulemaking, standards development, or other activities that other federal agencies may propose—prior to finalizing the proposed changes in this rule.”

In 2017, the FAA convened an Aviation Rulemaking Committee (ARC) comprised of industry, law enforcement, academics, and other stakeholders that delivered recommendations on the scope of such a proposal. At the time, however, the FAA was prohibited from regulating model aircraft, inclusive of recreational drones, so any proposal to require broad compliance with remote identification standards would have likely failed in court. However, the 2018 FAA Reauthorization Act repealed that prohibition when it was signed into law last October.

The schedule for the remote identification rulemaking has slipped several times, most recently to July 21, the date by which Merkle said this week that the FAA would publish its proposal. During the hearing, Chairman Wicker (R-MS) and Ranking Member Cantwell (D-WA) both touted the importance of remote identification to safety, security, and privacy, as well as to enabling expanded commercial drone operations in the United States. Former Chairman Thune (R-SD) and Senator Markey (D-MA) also wrote to Secretary of Transportation Chao last month requesting details on what steps must be taken for the FAA to publish its proposal by July 21.

The Commerce Committee is also likely to hold a confirmation hearing for Steve Dickson, the President’s nominee to serve as FAA Administrator, next week.

Senate Judiciary Committee Chairman Graham Backs Reintroduced Honest Ads Act

On Wednesday, Senators Klobuchar (D-MN) and Warner (D-VA) and Senate Judiciary Committee Chairman Graham (R-SC) reintroduced the Honest Ads Act, a bill that Klobuchar and Warner sponsored last Congress with the late Senator McCain (R-AZ) to protect the integrity of the U.S. electoral process. The bill aims to improve the transparency of online political advertising by requiring these ads to abide by the same disclosure requirements for television, radio, and print media. The bill also requires large digital platforms to maintain a public file of all political advertising purchased by an entity that spends more than $500 on ads published on the platform.

In a press release, Chairman Graham remarked that “foreign interference in U.S. elections – whether Russia in the 2016 presidential election or another rogue actor in the future – poses a direct threat to our democracy. I intend to work with my colleagues on both sides of the aisle to bolster our defenses and defend the integrity of our electoral system.” Reps. Kilmer (D-WA) and Stefanik (R-NY) sponsored companion legislation in the House with 26 cosponsors. The Honest Ads Act has already won support from several major social media platforms, the Campaign Legal Center, and the Alliance for Securing Democracy.