Emerging Technologies Washington Update

February 20, 2020

Pardon Our Dust

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This Week: Department of Justice Hosts Section 230 Workshop, Senator Gillibrand Releases Data Protection Act, Washington State Senate Advances Sweeping Consumer Privacy Legislation and European Union to Begin Moving Digital Services Act.

Week in Review

The House and Senate were in recess this week coinciding with the Presidents’ Day holiday.

Democratic debate

On Wednesday, the third Democratic debate of 2020 was held in Las Vegas, Nevada, just days before the state holds its caucus on February 22, 2020. Former New York City Mayor Michael Bloomberg made his first appearance on the debate stage, where he faced scrutiny from his opponents over his personal wealth, treatment of women, and record on stop-and-frisk. The tense tone of the debate led to prolonged confrontations between candidates, which was rarely seen in the previous debates. The final debate before candidates compete on Super Tuesday will be held in Charleston, South Carolina, on Tuesday, February 25.

Looking Ahead

With the President having delivered his FY21 budget proposal to Congress, the authorizing and appropriating committees are beginning the budget process. The House Appropriations Committee has scheduled a number of subcommittee hearings over the next few weeks during which members will have the opportunity to convey their priorities. The Senate Armed Services Committee has also scheduled initial hearings to further the FY21 National Defense Authorization Act (NDAA) process. In the meantime, the Senate Banking, Housing, and Urban Affairs Committee is planning hearings on public transportation in the context of the expiring surface transportation reauthorization.

The President and First Lady will travel to India next week. After several months of back and forth between both countries about escalating tariffs, the visit puts the US-India economic relationship– as well as the Trump-Modi relationship– on center stage.  Although President Trump’s tariff policies are not popular in India, his image in India, according to a Pew Research Study released today, has gained favor since his candidacy in 2016, jumping from 14% confidence to 56%. Observers anticipate a “mini” or “starter” trade deal that addresses some limited aspects of defense, energy, medical devices and agriculture following the visit.

The Federal Aviation Administration (FAA) will host a Drone Advisory Committee (DAC) meeting next Thursday. The FAA also recently announced its annual UAS Symposium will take place June 16-18 in Baltimore.

Department of Justice Hosts Section 230 Workshop

The Department of Justice hosted a workshop Wednesday on the history, status, and interpretation of Section 230 of the Communications and Decency Act of 1996. The morning began with introductory remarks from Attorney General Bill Barr and FBI Director Christopher Wray. Both expressed concerns about the state of the technology industry, with Barr claiming online platforms have “evoked immunity even where they solicited or encouraged unlawful conduct, shared in illegal proceeds or helped perpetrators hide from law enforcement” and Wray conveying that the current state of technology may pose “serious dangers” to Americans’ lives.

 Following these remarks, there were three panels: one on the history of the legislation, a second discussing whether Section 230 encourages illicit activity online, and a third looking at potential reforms to the law. On each panel, lawyers, activists, industry representatives, and academics debated the merits of the law. Participants expressed concerns about issues ranging from free speech and political censorship to the facilitation of sex trafficking and child exploitation. Proponents of Section 230 cited it as crucial to the growth and development of the technology sector and claimed that the platforms we have today would not exist without it. When offering reforms, some advocated for an incremental approach, while others called for a carve out for small businesses. Ultimately, panelists demonstrated the diversity of opinions that exist on the issue and highlighted how important and far reaching Section 230 has become.

Senator Gillibrand Releases the Data Protection Act

Last Thursday, Senator Kirsten Gillibrand (D-NY) unveiled the Data Protection Act, which would establish a new Data Protection Agency within the Executive Branch. The agency would be led by a Senate-confirmed director and be responsible for enforcing nine laws that govern data processing and privacy. In addition, the agency would be given rulemaking authority and the ability to conduct examinations of and reports on “very large covered entities,” which are companies that gross more than $25 million a year in revenue, collect 50,000 people’s data, or derive 50% or more of their annual revenue from the sale of data.

The agency would also be given significant enforcement power. It would retain its own lawyers, have the power to subpoena records, and be able to commence civil actions against entities that violate federal privacy laws. The bill also lays out a tiered system of fines, with violators facing either $5,000, $25,000, or $1 million dollar fines per day depending on severity. Additionally, the law would explicitly state that it will not preempt any state law that provides additional protections to consumers. Ultimately, the Data Protection Act is not designed to be a comprehensive piece of consumer data privacy legislation; it does not include references to issues like a private right of action, the right to delete, or data portability and would likely only move forward in coordination with more sweeping data privacy legislation.

Washington State Senate Advances Sweeping Consumer Privacy Legislation

Last Friday, the Washington Senate voted 46-1 to advance SB 6281, the Washington Privacy Act (WPA), which aims to strengthen consumer access to control over personal information, as well as to regulate the use of facial recognition technology. The bill’s lead sponsor, Senate Environment, Energy, and Technology Committee Chairman Reuven Carlyle (D-Seattle), said the legislation builds on best practices set forth by the European Union’s General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA).

WPA goes beyond CCPA in some regards. For example, CCPA only applies to for-profit organizations; WPA also captures non-profit organizations such as foundations and charities. Further, CCPA obligations apply to entities that “do business in” California, while WPA obligations extend to entities that “conduct business in Washington or produce products or services that are targeted to residents of Washington.” WPA also provides certain protections for commercial use of facial recognition technology that are not addressed by CCPA, namely that businesses must obtain affirmative opt-in consent to enroll a consumer in a facial recognition system.

A nearly identical consumer privacy companion bill is pending before the Washington House of Representatives. The chambers have until March 12 to pass, and if necessary, reconcile any differences between the legislation.

European Union to Begin Moving Digital Services Act

In laying out her political agenda for 2019-2024, European Commission President Ursula von der Leyen committed to enacting a new Digital Services Act (DSA) to “upgrade our liability and safety rules for digital platforms, services and products, and complete our Digital Single Market.” This week, the European Parliament Legal Affairs Committee formally began work on the DSA with rapporteur MEP Tiemo Wölken laying out a schedule that envisions legislation by the end of 2020. Wednesday, Commissioner von der Leyen released three separate documents–on AI, a European data strategy and a 5-year digital policy roadmap–underscoring how technology should comply with people’s rights.

A public consultation is expected to begin next month, with Wölken scheduled to deliver a report on the initiative to Parliament on April 21. The Legal Affairs Committee is planning a June 14 vote, followed by a plenary vote in mid-September.