Further Reading, Other Developments, and Coming Events (1 February 2021)

Antitrust, Coming Events, Competition, DOJ, Election, FCC, FTC, Further Reading, Misinformation, Other Developments, privacy, Privacy Bill, Section 230, Technology, Telecommunications 14 Minutes

Further Reading

  • “Facebook and Apple Are Beefing Over the Future of the Internet” By Gilad Edelman — WIRED. The battle over coming changes to Apple’s iOS continues to escalate. Apple CEO Tim Cook said the changes that will change the app set up for iPhone users to an opt-in system for tracking people across the internet would help protect both privacy and democracy. This latter claim is a shot at Facebook and its role in the rise of extremist groups in the United States and elsewhere. Facebook CEP Mark Zuckerberg claimed this change was of a piece with Apple’s long term interests in driving the app market from a free to paid model that would benefit the Cupertino giant through its 30% fees on all in-app purchases. Zuckerberg also reiterated Facebook’s arguments that such a change by Apple will harm small businesses that will have a harder time advertising. Facebook is also making noise about suing Apple in the same way Epic Games has for its allegedly anti-competitive app store practices. Experts expect Apple’s change will take as much as 10% off of Facebook’s bottom line until it and other advertising players adjust their tactics. This will not be the last shots fired between the two tech giants.
  • “Democratic Congress Prepares to Take On Big Tech” By Cecilia Kang — The New York Times. Senator Amy Klobuchar (D-MN) is vowing to introduce antitrust legislation this spring that could rein in big technology companies in the future. Klobuchar’s proposal will receive serious consideration because she now chairs the Senate Judiciary Committee’s subcommittee with jurisdiction over antitrust and competition policy. Klobuchar also plans to release a book this spring with her views on antitrust. Any proposal to reform antitrust law faces a steep uphill battle to 60 votes in the Senate.
  • “Pressure builds on Biden, Democrats to revive net neutrality rules” By Tony Romm — The Washington Post. Until the Federal Communications Commission (FCC) has a third Democratic vote, pressure from the left will be on whom the Biden Administration will choose to nominate. Once a Democratic majority is in place, the pressure will be substantial to re-promulgate the Obama Administration net neutrality order.
  • “Why Google’s Internet-Beaming Balloons Ran Out of Air” By Aaron Mak — Slate. Among the reasons Alphabet pulled the plug on Loon, its attempt to provide internet service in areas without it, include: the costs, lack of revenue since the areas without service tend to be poorer, the price barriers to people getting 4G devices, and resistance or indifference from governments and regulators.
  • “A big hurdle for older Americans trying to get vaccinated: Using the internet” By Rebecca Heilweil — recode. Not surprisingly, the digital divide and basic digital literacy are barriers to the elderly, especially poorer and minorities segment of that demographic, securing online appointments for COVID-19 vaccination.

Other Developments

  • A group of House and Senate Democrats have reintroduced the “Public Health Emergency Privacy Act,” a bill that follows legislation of the same title introduced last spring to address gaps in United States (U.S.) privacy law turned up by the promise of widespread use of COVID-19 tracking apps. And while adoption and usage of these apps have largely underperformed expectations, the gaps and issues have not. And, so Representatives Suzan DelBene (D-WA), Anna Eshoo (D-CA), and Jan Schakowsky (D-IL) and Senators Richard Blumenthal (D-CT) and Mark Warner (D-VA) have introduced the “Public Health Emergency Privacy Act” (S.81) but did not make available bill text, so it is not possible at this point to determine how closely it matches last year’s bill, the “Public Health Emergency Privacy Act” (S.3749/H.R.6866) (see here for my analysis of last year’s bill.) However, in a sign that the bills may be identical or very close in their wording, the summary provided in May 2020 and the one provided last week are exactly the same:
    • Ensure that data collected for public health is strictly limited for use in public health;
    • Explicitly prohibit the use of health data for discriminatory, unrelated, or intrusive purposes, including commercial advertising, e-commerce, or efforts to gate access to employment, finance, insurance, housing, or education opportunities;
    • Prevent the potential misuse of health data by government agencies with no role in public health;
    • Require meaningful data security and data integrity protections – including data minimization and accuracy – and mandate deletion by tech firms after the public health emergency;
    • Protect voting rights by prohibiting conditioning the right to vote based on a medical condition or use of contact tracing apps;
    • Require regular reports on the impact of digital collection tools on civil rights;
    • Give the public control over their participation in these efforts by mandating meaningful transparency and requiring opt-in consent; and
    • Provide for robust private and public enforcement, with rulemaking from an expert agency while recognizing the continuing role of states in legislation and enforcement.
  • The United States Department of Justice (DOJ) filed charges against a United States (U.S.) national for “conspiring with others in advance of the 2016 U.S. Presidential Election to use various social media platforms to disseminate misinformation designed to deprive individuals of their constitutional right to vote.” In its complaint, the DOJ foes out of its way not to mention which candidate in the presidential election the accused was working to elect, contemporaneous reporting on the individual made clear he supported Donald Trump and sought to depress the vote for former Secretary of State Hillary Clinton. In its press release, the DOJ asserted:
    • The complaint alleges that in 2016, Mackey established an audience on Twitter with approximately 58,000 followers. A February 2016 analysis by the MIT Media Lab ranked Mackey as the 107th most important influencer of the then-upcoming Election, ranking his account above outlets and individuals such as NBC News (#114), Stephen Colbert (#119) and Newt Gingrich (#141).
    • As alleged in the complaint, between September 2016 and November 2016, in the lead up to the Nov. 8, 2016, U.S. Presidential Election, Mackey conspired with others to use social media platforms, including Twitter, to disseminate fraudulent messages designed to encourage supporters of one of the presidential candidates (the “Candidate”) to “vote” via text message or social media, a legally invalid method of voting.
    • For example, on Nov. 1, 2016, Mackey allegedly tweeted an image that featured an African American woman standing in front of an “African Americans for [the Candidate]” sign.  The image included the following text: “Avoid the Line. Vote from Home. Text ‘[Candidate’s first name]’ to 59925[.] Vote for [the Candidate] and be a part of history.”  The fine print at the bottom of the image stated: “Must be 18 or older to vote. One vote per person. Must be a legal citizen of the United States. Voting by text not available in Guam, Puerto Rico, Alaska or Hawaii. Paid for by [Candidate] for President 2016.”
    • The tweet included the typed hashtags “#Go [Candidate]” and another slogan frequently used by the Candidate. On or about and before Election Day 2016, at least 4,900 unique telephone numbers texted “[Candidate’s first name]” or some derivative to the 59925 text number, which was used in multiple deceptive campaign images tweeted by the defendant and his co-conspirators.
  • Six European and two North American nations worked in coordinated fashion to take down a botnet. Europol announced that “[l]aw enforcement and judicial authorities worldwide have this week disrupted one of most significant botnets of the past decade: EMOTET…[and] [i]nvestigators have now taken control of its infrastructure in an international coordinated action” per their press release. Europol added:
    • EMOTET has been one of the most professional and long lasting cybercrime services out there. First discovered as a banking Trojan in 2014, the malware evolved into the go-to solution for cybercriminals over the years. The EMOTET infrastructure essentially acted as a primary door opener for computer systems on a global scale. Once this unauthorised access was established, these were sold to other top-level criminal groups to deploy further illicit activities such data theft and extortion through ransomware.
  • On 26 January, Senator Ed Markey (D-MA) “asked Facebook why it continues to recommend political groups to users despite committing to stopping the practice” at an October 2020 hearing. Markey pressed CEO Mark Zuckerberg to “explain the apparent discrepancy between its promises to stop recommending political groups and what it has delivered.” Markey added:
    • Unfortunately, it appears that Facebook has failed to keep commitments on this topic that you made to me, other members of Congress, and your users. You and other senior Facebook officials have committed, and reiterated your commitment, to stop your platform’s practice of recommending political groups. First, on October 28, 2020, you appeared before the U.S. Senate Committee on Commerce, Science, and Transportation and stated that Facebook had stopped recommending groups with political content and social issues. When I raised concerns about Facebook’s system of recommending groups, you stated, “Senator, we have taken the step of stopping recommendations in groups for all political content or social issue groups as a precaution for this.”
    • It does not appear, however, that Facebook has kept these commitments. According to The Markup, Facebook “continued to recommend political groups to its users throughout December[of 2020]” — well after you responded to my question at the Commerce Committee hearing.
    • On 27 January, Zuckerberg announced on an earnings call that the platform would stop recommending political and civic groups to users.
  •  The United States (U.S.) Department of Transportation’s National Highway Traffic Safety Administration “announced the expansion of the Automated Vehicle Transparency and Engagement for Safe Testing (AV TEST) Initiative from a pilot to a full program” according to a press release. NHTSA announced the “new web pilot of the Department initiative to improve the safety and testing transparency of automated driving systems” in June 2020 that “aligns with the Department’s leadership on automated driving system vehicles, including AV 4.0:  Ensuring American Leadership in Automated Vehicle Technologies.”
  • The United Kingdom’s (UK) House of Lords amended the government’s Trade Bill that would allow for an agreement with the United States (U.S.) in a way that would block the U.S.’s position that essentially exports 47 USC 230 (Section 230) to the UK. The Lords agreed to this language:
    • (1)The United Kingdom may only become a signatory to an international trade agreement if the conditions in subsection (2) are satisfied.
    • (2) International trade agreements must be consistent with—
      • (a) other international treaties to which the United Kingdom is a party, and the domestic law of England and Wales (including any changes to the law after the trade agreement is signed), regarding the protection of children and other vulnerable user groups using the internet;
      • (b) the provisions on data protection for children, as set out in the age appropriate design code under section 123 of the Data Protection Act 2018 (age-appropriate design code) and other provisions of that Act which impact children; and(c)online protections provided for children in the United Kingdom that the Secretary of State considers necessary.
    • However, the House of Commons disagreed with this change, arguing “it is not an effective means of ensuring the protection of children online.”
    • In a House of Lords briefing document, it is explained:
      • The bill introduces measures to support the UK in implementing an independent trade policy, having left the European Union. It would:
        • enable the UK to implement obligations arising from acceding to the international Agreement on Government Procurement in its own right;
        • enable the UK to implement in domestic law obligations arising under international trade agreements the UK signs with countries that had an existing international trade agreement with the EU;
        • formally establish a new Trade Remedies Authority;
        • enable HM Revenue and Customs (HMRC) to collect information on the number of exporters in the UK; and
        • enable data sharing between HMRC and other private and public sector bodies to fulfil public functions relating to trade.
  • According to their press release, “a coalition of education advocates petitioned the Federal Communications Commission (FCC) to close the remote learning gap for the estimated 15 to 16 million students who lack home internet access” through the E-rate program. This petition follows an Executive Order (EO) signed by President Joe Biden on the first day of his Administration, calling on the FCC to expand broadband connectivity for children across the United States to help them with schooling and studies.
    • In their petition, the groups argued
      • In one of his first Executive Orders, President Biden stated: “The Federal Communications Commission is encouraged, consistent with applicable law, to increase connectivity options for students lacking reliable home broadband, so that they can continue to learn if their schools are operating remotely.”
      • Consistent with [Biden’s EO], the Commission can dramatically improve circumstances for these underserved students, and for schools all over the country that are struggling to educate all of their students, by taking the temporary, limited measures requested in this Petition.
      • As shown below, these actions are well within the Commission’s authority, and in fact all of the actions requested in this Petition could be taken by the Wireline Competition Bureau on delegated authority.
      • As noted above, the Petitioners ask that the Commission issue a declaratory ruling to clarify that, for the duration of the pandemic, the off-campus use of E-rate-supported services to enable remote learning constitutes an “educational purpose” and is therefore allowed under program rules.
      • The declaratory ruling will allow schools and libraries to extend E -rate-funded broadband networks and services outside of a school or library location during Funding Years 2020 and 2021, without losing E-rate funds they are otherwise eligible to receive. Importantly, this requested action would not require the collection of any additional Universal Service funds.
      • Given the severity of our current national emergency, the Petitioners ask that the Bureau release hundreds of millions of dollars—currently not designated for use but held in the E-rate program—to support remote learning. There is little justification for keeping E-rate funds in reserve when the country is facing such an enormous educational crisis.
      • The Commission should use the program’s existing discount methodologies, which take into account socioeconomic status and rural location, in calculating the amount of funding that applicants may receive.  Applicants will have the incentive to make cost-effective purchases because they will have to pay a share of the total cost of services.  
      • To facilitate the distribution of additional funding, Petitioners ask that the Commission direct the Universal Service Administrative Company (USAC) to establish a “remote learning application window” as soon as practicable for the specific purpose of allowing applicants to submit initial or revised requests for E-rate funding for off-campus services used for educational purposes during Funding Years 2020 and 2021.  
      • The Petitioners ask the Commission to waive all rules necessary to effectuate these actions for remote learning funding applications, including the competitive bidding, eligible services, and application rules, pursuant to section 1.3 of the Commission’s rules.
      • The Petitioners respectfully request expedited review of this petition, so that schools and libraries may take action to deploy solutions as soon as possible.
  • “A group of more than 70 organizations have sent a letter to Congress and the Biden/Harris administration warning against responding to the violence in the U.S. Capitol by renewing injudicious attacks on Section 230 of the Communications Decency Act” per their press release. They further urged “lawmakers to consider impacts on marginalized communities before making changes to Section 230, and call on lawmakers to take meaningful action to hold Big Tech companies accountable, including enforcement of existing anti-trust and civil rights law, and passing Federal data privacy legislation.” The signatories characterized themselves as “racial justice, LGBTQ+, Muslim, prison justice, sex worker, free expression, immigration, HIV advocacy, child protection, gender justice, digital rights, consumer, and global human rights organizations.” In terms of the substance of their argument, they asserted:
    • Gutting Section 230 would make it more difficult for web platforms to combat the type of dangerous rhetoric that led to the attack on the Capitol. And certain carve outs to the law could threaten human rights and silence movements for social and racial justice that are needed now more than ever. 
    • Section 230 is a foundational law for free expression and human rights when it comes to digital speech. It makes it possible for websites and online forums to host the opinions, photos, videos, memes, and creativity of ordinary people, rather than just content that is backed by corporations. 
    • The danger posed by uncareful changes to Section 230 is not theoretical. The last major change to the law, the passage of SESTA/FOSTA in 2018, put lives in danger. The impacts of this law were immediate and destructive, limiting the accounts of sex workers and making it more difficult to find and help those who were being trafficked online. This was widely seen as a disaster that made vulnerable communities less safe and led to widespread removal of speech online.
    • We share lawmakers’ concerns with the growing power of Big Tech companies and their unwillingness to address the harm their products are causing. Google and Facebook are just some of the many companies that compromise the privacy and safety of the public by harvesting our data for their own corporate gain, and allowing advertisers, racists and conspiracy theorists to use that data to target us. These surveillance-based business models are pervasive and an attack on human rights. But claims that Section 230 immunizes tech companies that break the law, or disincentivizes them from removing illegal or policy-violating content, are false. In fact, Amazon has invoked Section 230 to defend itself against a lawsuit over its decision to drop Parler from Amazon Web Services due to unchecked threats of violence on Parler’s platform. Additionally, because Section 230 protects platforms’ decisions to remove objectionable content, the law played a role in enabling the removal of Donald Trump from platforms, who could act without fear of excessive litigation.

Coming Events

  • On 3 February, the Senate Commerce, Science, and Transportation Committee will consider the nomination of Rhode Island Governor Gina Raimondo to be the Secretary of Commerce.
  • On 17 February, the Federal Communications Commission (FCC) will hold an open meeting, its first under acting Chair Jessica Rosenworcel, with this tentative agenda:
    • Presentation on the Emergency Broadband Benefit Program. The Commission will hear a presentation on the creation of an Emergency Broadband Benefit Program. Congress charged the FCC with developing a new $3.2 billion program to help Americans who are struggling to pay for internet service during the pandemic.
    • Presentation on COVID-19 Telehealth Program. The Commission will hear a presentation about the next steps for the agency’s COVID-19 Telehealth program. Congress recently provided an additional $249.95 million to support the FCC’s efforts to expand connected care throughout the country and help more patients receive health care safely.
    • Presentation on Improving Broadband Mapping Data. The Commission will hear a presentation on the work the agency is doing to improve its broadband maps. Congress directly appropriated $65 million to help the agency develop better data for improved maps.
    • Addressing 911 Fee Diversion. The Commission will consider a Notice of Proposed Rulemaking that would implement section 902 of the Don’t Break Up the T-Band Act of 2020, which requires the Commission to take action to help address the diversion of 911 fees by states and other jurisdictions for purposes unrelated to 911. (PS Docket Nos. 20-291, 09-14)
    • Implementing the Secure and Trusted Communications Networks Act. The Commission will consider a Third Further Notice of Proposed Rulemaking that proposes to modify FCC rules consistent with changes that were made to the Secure and Trusted Communications Networks Act in the Consolidated Appropriations Act, 2021. (WC Docket No. 18-89)
  • On 27 July 2021, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2021. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Photo by Nikolai Chernichenko on Unsplash

Published by Michael Kans

An attorney who specializes in technology policy, law, and politics with other areas of expertise.

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