Emerging Technologies Washington Update

June 18, 2020

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This week: Coronavirus response; Section 230 under fire again on both sides of the aisle; momentum grows for regulating facial recognition technology.

Coronavirus Response

The Latest

White House Trade Adviser Peter Navarro said this week that President Trump “is very interested in something on the order of at least $2 trillion” for the next coronavirus response package. The statement is at odds with Senate Majority Leader McConnell’s (R-KY) previous assertions that a Phase 4 package should come in at no more than $1 trillion. In contrast, the House Democrats’ HEROES Act is approximately $3 trillion.

Congressional Republicans have generally maintained that existing relief programs need more time to take effect before moving ahead with a Phase 4. In recent days, the Treasury Department and Small Business Administration (SBA) published two new Paycheck Protection Program (PPP) interim final rules (IFRs), available here and here, to make revisions to the first PPP interim final rule to conform with the PPP Flexibility Act. Another new IFR makes revisions to the program’s third and sixth IFRs. SBA also updated the borrower application and the lender application and published a new EZ loan forgiveness application (with instructions) and a new standard loan forgiveness application (with instructions). Treasury Secretary Mnuchin and the Federal Reserve Bank of Boston also announced that the Main Street Lending Program Lender Portal is open and the Federal Reserve announced it is seeking public comment on its proposal to expand the Main Street Lending Program to provide access to credit for nonprofit organizations.

On Capitol Hill, congressional committees continued to hold COVID-19 oversight hearings focused on a range of topics, including the impact on public education, the impact on Sub-Saharan Africa, how bad actors are exploiting the financial system, how the Department of Homeland Security can safely resume operations, telehealth, the PPP, racial and ethnic health disparities, international pandemic preparedness, tax relief, resuming air travel, and jobs and unemployment.  

The Senate Energy and Natural Resources and House Energy and Commerce Committees also held hearings on the impact of COVID-19 on the energy industry and Federal Reserve Chairman Jerome Powell testified before the Senate Banking and House Financial Services Committees on the semiannual Monetary Report to Congress.

Elsewhere, the President and federal agencies continue to take other steps to respond to the outbreak, including, but not limited to:

  • Vice President Pence held a briefing with governors and the White House Coronavirus Task Force on COVID-19 response and recovery with a focus on supporting small businesses and workforce development.
  • The Vice President also published an op-ed in the Wall Street Journal entitled, “There Isn’t a Coronavirus Second Wave” in which he discusses the Administration’s efforts related to testing, PPE distribution, and vaccine development.
  • The Department of Health and Human Services (HHS) published a fact sheet on Operation Warp Speed, which aims to deliver 300 million doses of a COVID-19 vaccine by January 2021.
  • The Centers for Disease Control and Prevention (CDC) released consolidated recommendations for COVID-19 testing, including interim testing guidelines for nursing home residents and healthcare personnel, as well as testing strategy options for high-density critical infrastructure workplaces after a COVID-19 case is identified. The recommendations compile and update previous testing guidance.
  • The Food and Drug Administration (FDA) revoked emergency use authorizations (EUAs) for hydroxychloroquine and chloroquine. FDA Chief Scientist Denise Hinton wrote that studies indicate the drugs “are unlikely to produce an antiviral effect” to treat coronavirus.
  • The Department of Labor (DOL) issued programmatic guidance to help ensure the accuracy of unemployment claims made due to implementation of the CARES Act.
  • A draft Energy Regulatory Commission (FERC) policy statement provided guidance regarding the Commission’s response to the effects of the COVID-19 national emergency on oil pipelines.

A complete overview of both congressional and Administrative response efforts is available here and updated daily.

What’s Next

Next week, House and Senate committees have more coronavirus oversight hearings scheduled to examine inequities in education, health, and the workforce, preparing for the next pandemic, the Trump Administration’s response to the pandemic, health and wealth inequality, capital markets and emergency lending, and insuring against a pandemic.

Relevant Resources

In Other News

Section 230 Under Fire Again on Both Sides of the Aisle

With social media companies like Twitter and Facebook in disagreement over the role they should play in fact-checking the President, halting the spread of fake news, or combating violent extremism, a number of lawmakers on both sides of the aisle are once again taking aim at Section 230 of the Communications Decency Act. The law, which shields online platforms from liability for the third-party content posted on their sites, has taken heat from Republicans, who claim companies like Facebook and Twitter demonstrate an anti-conservative bias, and Democrats, who assert these same platforms proliferate fake news and provide a venue for dangerous ideologies to flourish. In the case of Facebook, the platform decided not to censor controversial advertisements from President Trump’s reelection campaign, leading former Vice President and presumptive Democratic presidential nominee Joe Biden to urge his supporters to sign an open letter to CEO Mark Zuckerberg demanding he remove misleading content, including political ads, and draft rules to prevent bad actors from using the site to spread fake news. Similarly, Speaker Pelosi (D-CA) recently derided technology platforms for their “complete failure to fight the spread of disinformation,” and Rep. Schakowsky (D-IL), who chairs the House Energy and Commerce Committee Subcommittee on Consumer Protection, is preparing to release a bill that would reform Section 230 and address issues of election misinformation.

On the Republican side, after Twitter fact-checked a number of his tweets last month, President Trump signed an Executive Order taking aim at the platform and Section 230. The Order labels fact-checking as editorial conduct outside the scope of the law and prohibits the federal government from advertising on platforms that breach Section 230’s editorial conduct restrictions. It also allows the Federal Trade Commission (FTC) and state attorneys general to investigate violators’ behavior. Senator Hawley (R-MO), a vocal critic of Big Tech, sent a letter to Twitter CEO Jack Dorsey saying, “Twitter’s decision to affix its own editorial content to users’ posts brings into question the basis” for its Section 230 immunity. On Wednesday, Hawley introduced the Limiting Section 230 Immunity to Good Samaritans Act “to employer Americans to sue Big Tech companies who act in bath faith by selectively censoring political speech and hiding content created by their competitors.” Senators Rubio (R-FL), Braun (R-IN), Cotton (R-AR), and Loeffler (R-GA) cosponsored the legislation.

Finally, the Department of Justice (DOJ) announced the results of its Section 230 analysis and four areas “ripe for reform,” including 1) incentivizing online platforms to address illicit content; 2) clarifying federal government enforcement capabilities to address unlawful content; 3) promoting competition; and 4) promoting open discourse and greater transparency. Any legislative proposal would require Congressional action and it seems unlikely that DOJ’s recommendations will garner bipartisan support. Senator Blumenthal (D-CT), a vocal Section 230 critic, panned the proposal.

Momentum Grows for Regulating Facial Recognition Technology

In the wake of nationwide protests against police brutality, several companies have started distancing themselves from facial recognition technology, while simultaneously stepping up pressure on Congress to take action to curtail law enforcement’s use of it. In steady succession over the past week and a half, high profile tech companies have made public statements about dialing back, or in some cases, ceasing the sale of facial recognition software to police at the state and local level. On June 8, IBM CEO Arvind Krishna sent a letter to Congress which said the company will end its facial recognition business and that “national policy should encourage and advance uses of technology that bring greater transparency and accountability to policing.” On June 10, Amazon announced a one year moratorium on the sale of its facial recognition technology, Rekognition, to police, and stated that it hopes this pause allows Congress enough time to implement “appropriate rules” to govern the ethical use of facial recognition technology moving forward. The following day, Microsoft President Brad Smith announced that the company would no longer sell its facial recognition technology to police until “there is a national law in place, grounded in human rights, that will govern this technology.”

In Congress, where there is increasing bipartisan criticism of facial recognition technology, there is no federal law on the books clarifying rules for its application. This is despite several laws proposed and debated in the past year alone. Civil liberties groups have long decried algorithms used by facial recognition software for built-in biases against people of color and women, a topic which has received considerable attention during Congressional hearings. Another key concern has been how to strike the right balance between protecting consumer privacy without stifling technological innovation in areas where facial recognition technology has the opportunity to enrich daily lives. According to Chairwoman Carolyn Maloney (D-NY), the House Oversight and Reform Committee is poised to reintroduce a facial recognition bill in the coming weeks that will once again try to tackle thorny issues driving the debate.