Emerging Technologies Washington Update

November 7, 2019

Pardon Our Dust

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This Week: Bipartisan Senate Commerce members introduce legislation targeting so-called filter bubbles, Senate Judiciary Subcommittee examines data exposure and cybersecurity, Eshoo, Lofgren unveil privacy legislation, FCC Technological Advisory Council to make recommendations next month.

Week in Review

The House was in recess this week. The Senate resumed legislative business on Tuesday and spent the bulk of the week on pending nominations.

Last Friday, Senator Ted Cruz (R-TX) sent a letter to US Trade Representative Robert Lighthizer urging him to remove from any draft trade agreement language incorporating Section 230 of the Communications Decency Act. “With members of both the Senate and House of Representatives seriously considering whether to amend or eliminate Section 230’s grant of immunity because big tech is not living up to its end of the legislative bargain, I believe that enshrining it in our trade agreements would be a mistake,” Cruz wrote.

Cruz, in his capacity as Senate Aviation and Space Subcommittee Chairman, also introduced NASA reauthorization legislation this week alongside Senate Commerce Committee Chairman Roger Wicker (R-MS), Ranking Member Maria Cantwell (D-WA), and Subcommittee Ranking Member Kyrsten Sinema (D-AZ). The Committee will mark up the bill, along with a slew of others, during an executive session next Wednesday.

Rep. Pete Visclosky (D-IN), who chairs the House Appropriations Subcommittee on Defense, announced this week that he will retire. The Appropriations Chairwoman, Rep. Nita Lowey (D-NY), previously announced that she would not seek reelection.

President Trump announced last Friday that Acting Undersecretary for Strategy, Policy, and Plans Chad Wolf would become Acting Secretary of Homeland Security, succeeding Kevin McAleenan. Senate Majority Leader Mitch McConnell (R-KY) plans to hold a vote next week to confirm Wolf to his undersecretary position, to which he was nominated in February, to weaken any legal challenges to Wolf assuming the role of Acting Secretary.

Trump also announced last Friday that he will nominate Dr. Stephen Hahn to lead the Food and Drug Administration (FDA). The White House sent Hahn’s nomination to the Senate on Tuesday and in announcing his support for the nomination, Senate Health, Education, Labor, and Pensions Committee Chairman Lamar Alexander (R-TN) said he will hold a confirmation hearing on November 20.

The Federal Trade Commission (FTC) announced this week that it will hold a workshop on January 28, 2020 to examine the status of – and potential consequences of – voice cloning technologies. The FTC also released a new guide this week for social media influencers as it pertains to endorsements and sponsorships that summarizes the agency’s existing guidance, including its Endorsement Guides and a 2017 Q&A document.

Looking Ahead

With government spending authorities scheduled to expire on November 21, bipartisan, bicameral Appropriations Committee leadership will meet next week to chart a path for FY20 spending measures, including another likely continuing resolution through mid to late December. The White House said this week that the President would support such an extension.

The House Antitrust Subcommittee will hold the fourth in its series of hearings on online platforms and market power next Wednesday, this one focused on “Perspectives of the Antitrust Agencies.” Federal Trade Commission Chairman Joe Simons and Assistant Attorney General Makan Delrahim will testify.

House Democratic leadership had planned a vote on H.R. 3, the prescription drug pricing legislation spearheaded by Speaker Nancy Pelosi (D-CA), this month, but now do not expect to bring it to the floor until December as lawmakers continue to wait for a full Congressional Budget Office (CBO) score. There also remain differences to reconcile as a result of markups in three committees of jurisdiction.

Senate Commerce Committee Chairman Roger Wicker (R-MS) introduced legislation this week a clean STELAR reauthorization bill to extend for five years the satellite television law that is set to expire at the end of the year. No House companion reauthorization, clean or otherwise, has been offered. The Committee will also consider nearly two dozen bills and a handful of nominations next week.

Bipartisan Senate Commerce Members Introduce Legislation Targeting So-Called Filter Bubbles

Last Friday, Senate Commerce Committee members Senators John Thune (R-SD), Richard Blumenthal (D-CT), Jerry Moran (R-KS), and Marsha Blackburn (R-TN), as well as Senator Mark Warner (D-VA), introduced the Filter Bubble Transparency Act, legislation targeting so-called secret algorithms. The legislation “would make it easier for internet platform users to understand the potential manipulation that exists with secret algorithms and require large-scale platforms to allow those users to consume information outside of that potential manipulation zone or ‘filter bubble’,” the sponsors said in a joint statement. The bill applies to large-scale internet platforms, defined as those that collect data from more than one million users and gross more than $50 million per year.

Specifically, the Filter Bubble Transparency Act would require such platforms to notify users when it creates a filter bubble that uses secret algorithms to determine the order or manner in which information is delivered and to provide users with the option to view the information they provide “bubble-free.” It goes on to require platforms to enable users to shift between customized versions of information generated by filter bubbles and a version not influenced by a filter bubble. Platforms would be prohibited from utilizing secret algorithms unless they adhere to these requirements, which would be subject to Federal Trade Commission enforcement.

Senate Judiciary Subcommittee Examines Data Exposure and Cybersecurity

The Senate Judiciary Crime and Terrorism Subcommittee held a hearing on “How Corporations and Big Tech Leave Our Data Exposed to Criminals, China, and Other Bad Actors” yesterday. Only Subcommittee Chairman Josh Hawley (R-MO) and Ranking Member Sheldon Whitehouse (D-RI) attended and discussed the increasing vulnerabilities Americans face in the developing digital landscape, as well as growing national security concerns created by companies that collect large amounts of user data. Whitehouse expressed frustration that no Administration officials were present, but he and Hawley agreed to have such a panel at a future hearing.

Hawley and Whitehouse primarily focused their questions on cybersecurity and data privacy, with Whitehouse reiterating his support for a coalition of like-minded countries coming together to establish international cybersecurity norms. Hawley expressed concerns about Chinese government access to data collected by American companies, particularly when it comes to encryption keys in China.

Eshoo, Lofgren Unveil Privacy Legislation

Reps. Anna Eshoo (D-CA) and Zoe Lofgren (D-CA), senior members of the House Energy and Commerce and House Judiciary Committees, respectively, unveiled federal privacy legislation this week. The Online Privacy Act would establish a new United States Digital Privacy Agency (DPA), the Director of which shall be appointed by the President, subject to Senate confirmation, and serve a five-year term. The bill authorizes up to 1,600 employees for the new agency, which would enforce privacy protections, and also empowers state attorneys general to bring civil actions for violations of the bill.

According to the sponsors, the Online Privacy Act would give users the ability to access, correct, delete, and transfer their data; request human review of certain automated decisions; give opt-in consent for using their data for machine learning or artificial intelligence algorithms; be informed if an entity has collected their information; and choose for how long their data can be kept.

It also places certain obligations on companies, including, but not limited to, minimizing employee/contractor access to user data, notifying the DPA and users of data breaches, and conveying the need for and minimizing the user data that is collected, processed, disclosed, and maintained.

Energy and Commerce Republican leadership, including Ranking Member Greg Walden (R-OR) and Subcommittee Chairwoman Cathy McMorris Rodgers (R-WA), criticized the legislation for not preempting state laws and for creating an “unnecessary” new federal agency rather than strengthening the Federal Trade Commission’s consumer protection tools. They also called the private right of action “an unfettered giveaway to trial lawyers which will kill innovation and investment.”

FCC Technological Advisory Council to Make Recommendations Next Month

On December 4, the Federal Communication Commission’s (FCC) Technological Advisory Council (TAC) will hold its final meeting of 2019. At the meeting, each working group will present its final recommendations based on progress made over the course of 2019. The TAC’s work focused on four specific areas: antenna technology, unmanned aircraft systems (UAS), 5G and Internet of Things (IoT), and Artificial Intelligence. Each working group was directed by the Commission to explore a specific set of issues related to the technologies under the working group’s purview. For example, the UAS working group was tasked with making recommendations as to how the Commission can support the safe operation of UAS within the scope of the FCC’s jurisdiction over spectrum and other communications links. The Artificial Intelligence working group was tasked with providing information on artificial intelligence and the variety of roles it might play in communications networks and services. The December 4 meeting is open to the public and will be live streamed here.