Other Developments, Further Reading, and Coming Events (20 April 2021)

Other Developments

• A bipartisan group of Senators and Representatives wrote the President asking for funding to stimulate semiconductor production in the United States (U.S.) per provisions in the FY 2021 National Defense Authorization Act (NDAA) (P.L. 116-283). In a press release issued by one of the signatories, Senator John Cornyn (R-TX), the Members stated:
  • We write today to encourage you to prioritize securing funding to implement the initiatives authorized in the CHIPS for America Act that were enacted into law as part of the fiscal year 2021 National Defense Authorization Act (referred to as the ‘CHIPS provisions’). We would specifically request you consider joining us in support of funding levels that are at least the authorized amounts proposed in the original bill as you work with Congress on a package of policies to better compete with China and how best to strengthen our country’s economic competitiveness and resiliency as well as national security.
  • In addition to enabling sustainable economic growth today, funding the CHIPS provisions is a top national security priority. The Chinese Communist Party (CCP) has aggressive plans to reorient and dominate the semiconductor supply chain, pouring over $150 billion in semiconductor manufacturing subsidies and investing $1.4 trillion in their efforts to become the dominate global technological power. Even full funding of the originally filed CHIPS provisions pales in comparison to the investments being made by the CCP, which speaks to why consideration of an even higher level of funding is worthwhile.
  • The United States must also work with our allies and strategic partners to out-scale the CCP in manufacturing capabilities for advanced semiconductors. If we lose these highly-skilled jobs and know-how to China, the United States will never recapture them. Further, we risk dependence on a strategic competitor for the advanced semiconductors that power our economy, military, and critical infrastructure.
  • As you develop your FY 2022 budget request, we encourage you to include some initial investments to support semiconductor R&D and manufacturing at agencies like Commerce, DOD, DOE, and NSF as intended by CHIPS.
  • Finally, should you explore executive actions to address this urgent semiconductor matter, we encourage you to continue pursuing a technology neutral approach.
• Senator Josh Hawley (R-MO) has reintroduced his bill, the “No TikTok on Government Devices Act” (S.1143) that would ban United States (U.S.) government employees from downloading TikTok on their government-issued phones. This bill passed the Senate unanimously last year (S.3455), but the House never took up the bill. Representative Ken Buck (R-CO) reintroduced companion legislation (H.R.2566), and Senators Rick Scott (R-FL), Marco Rubio (R-FL), and Tom Cotton (R-AR) cosponsored the Senate version. In his press release, Hawley asserted:
  • My bill is a straightforward plan to protect American government data from a hostile foreign power, which, less than a year ago, passed the Senate unanimously. TikTok has repeatedly proven itself to be a malicious actor but Joe Biden and Big Tech refuse to take the threat of Chinese espionage seriously. It’s time for Congress to act.
  • The State Department, the Department of Homeland Security, the Department of Defense, and TSA have already banned TikTok on federal government devices.
• Federal Communications Commission (FCC) acting Chair Jessica Rosenworcel “announced that the Commission will re-establish the Communications Security, Reliability, and Interoperability Council (CSRIC), with a primary focus on improving 5G network security” per the agency’s statement. The FCC added:
  • In addition, following security breaches that have impacted the communications sector, she will ask the Committee to review software and cloud services vulnerabilities and to develop mitigation strategies.
  • Finally, Acting Chairwoman Rosenworcel will seek to diversify the group’s membership to include a broad variety of stakeholders, including representation from the FCC’s federal partners with similar interests.
  • In the public notice, the FCC explained:
    • CSRIC VIII will provide advice and recommendations to the Commission to improve the security, reliability, and interoperability of the nation’s communications systems. Among other issues, Acting Chairwoman Jessica Rosenworcel will ask CSRIC VIII to identify 5G security as a primary focus. In addition, following security breaches that have impacted the communications sector, she will ask CSRIC VIII to review risks to service provider operations from attacks in software and cloud services stacks and to develop mitigation strategies. Finally, in seeking nominations for CSRIC VIII, Acting Chairwoman Rosenworcel will seek to diversify the group’s membership to include a broad variety of stakeholders, including representation from the FCC’s federal government partners with similar interests.
• Senators Ed Markey (D-MA), Richard Blumenthal (D-CT) and Representatives Lori Trahan (D-MA) and Kathy Castor (D-FL) wrote Facebook CEO Mark Zuckerberg “regarding Facebook’s recent announcement that it is “exploring” plans to launch a version of Instagram, which Facebook owns, for users under the age of 13.” They posed a series of lengthy questions aimed at obtaining more information about Facebook’s plans and the safeguards they propose to implement to protect users under 13. They added:
  • Given Facebook’s past failures to protect children and in light of evidence that using Instagram may pose a threat to young users’ wellbeing, we have serious concerns about this proposal. Children are a uniquely vulnerable population online, and images of kids are highly sensitive data. Facebook has an obligation to ensure that any new platforms or projects targeting children put those users’ welfare first, and we are skeptical that Facebook is prepared to fulfil this obligation.
  • If Facebook’s objective is to decrease the number of users under the age of 13 on its current Instagram platform, it should invest in efforts to do that directly. The alternative approach that Facebook appears poised to take—specifically, pushing kids to sign up for a new platform that may itself pose threats to young users’ privacy and wellbeing—involves serious challenges and may do more harm than good.
• Google’s YouTube announced it “will release a new metric called Violative View Rate (VVR) as part of our Community Guidelines Enforcement Report.” YouTube stated:
  • The report will have a separate section called ‘Views’ which will lay out historical and the Q4 (Oct-Dec 2020) VVR data, along with details on its methodology. Going forward, we will be updating this data quarterly. VVR helps us estimate the percentage of the views on YouTube that come from violative content.
  • Put simply, the Violative View Rate (VVR) helps us determine what percentage of views on YouTube comes from content that violates our policies. Our teams started tracking this back in 2017, and across the company it’s the primary metric used to measure our responsibility work. As we’ve expanded our investment in people and technology, we’ve seen the VVR fall. The most recent VVR is at 0.16-0.18% which means that out of every 10,000 views on YouTube, 16-18 come from violative content. This is down by over 70% when compared to  the same quarter of 2017, in large part thanks to our investments in machine learning.  Going forward, we will update the VVR quarterly in our Community Guidelines Enforcement Report. 
  • VVR data gives critical context around how we’re protecting our community. Other metrics like the turnaround time to remove a violative video, are important. But they don’t fully capture the actual impact of violative content on the viewer. For example, compare a violative video that got 100 views but stayed on our platform for more than 24 hours with content that reached thousands of views in the first few hours before removal. Which ultimately has more impact? We believe the VVR is the best way for us to understand how harmful content impacts viewers, and to identify where we need to make improvements.
  • We calculate VVR by taking a sample of videos on YouTube and sending it to our content reviewers who tell us which videos violate our policies and which do not. By sampling, we gain a more comprehensive view of the violative content we might not be catching with our systems. However, the VVR will fluctuate — both up and down.  For example, immediately after we update a policy, you might see this number temporarily go up as our systems ramp up to catch content that is newly classified as violative.
• The National Association of Attorneys General (NAAG) wrote Twitter, eBay, and Shopify “to act immediately to prevent people from selling fraudulent Centers for Disease Control and Prevention (CDC) vaccination cards on their platforms.” The attorneys general stated:
  • We are deeply concerned about this use of your platforms to spread false and misleading information regarding COVID vaccines. The false and deceptive marketing and sales of fake COVID vaccine cards threatens the health of our communities, slows progress in getting our residents protected from the virus, and are a violation of the laws of many states. Multiple states’ laws provide for injunctive relief, damages, penalties, and other remedies for such conduct.
  • The use of your platforms to disseminate the deceptive marketing and sales of fake vaccine cards is a threat to residents of our states. As a result, we are asking you to take immediate action to prevent your platforms from being used as a vehicle to commit these fraudulent and deceptive acts that harm our communities. Such action should include, without limitation: (1) monitoring your platforms for ads or links marketing or selling, or otherwise indicating the availability of, blank or fraudulently completed vaccine cards; (2) promptly taking down ads or links identified through that monitoring; and (3) preserving records, such as the content, username, and actual user identity, pertaining to any such ads or links.
• Apple and Epic Games both filed their findings of fact and conclusions of law they hope the federal trial court will adopt when their trial starts next month. This dispute started when Fortnite started allowing Fortnite players using the iPhone or iPad to pay less for in-app purchases by buying directly from Epic Games instead of using Apple’s App Store which takes 30% of all sales. Apple and Google responded by kicking Fortnite out of their app stores, and Epic Games filed suit. Epic Games was partially successful in seeking an injunction against Apple but failed in getting Fortnite back in the App Store. Epic Games has also filed claims in other jurisdictions or sought to get antitrust regulators on the field in the United Kingdom, the European Union, and Australia.
  • Apple claimed in its filing:
    • Epic objects to paying Apple a 30% commission—even though it pays the same commission to many other platforms on which Epic distributes Fortnite. When Apple refused Epic’s request for a special deal, Epic included secret code in a Fortnite update and triggered it, using a server-side “hotfix,” to allow iOS customers to purchase V-Bucks without paying Apple’s commission. This was a breach of the DPLA (as Epic concedes), so Apple terminated Epic’s developer privileges and removed Fortnite from the App Store.
    • This was all part of a pre-planned media strategy called “Project Liberty.” Epic retained Cravath, Swaine & Moore LLP and a public relations firm in 2019, and this lawsuit is the culmination of that effort. Epic seeks to portray Apple as the “bad guy” so that it can revive flagging interest in Fortnite. Yet, ironically, when Epic got kicked off the iOS platform, it told players that they could continue playing on consoles, PCs, and other devices—demonstrating the existence of competition and the absence of monopoly.
    • Apple is not a monopolist in any relevant market. Apple does not have market power over digital game transactions. Whether measured in apps or in-app purchases, output has increased while prices have stayed constant or fallen. The restrictions in Apple’s license agreements protect its intellectual property and serve a variety of procompetitive benefits including reliability, security, and privacy. Epic just wants to free-ride on Apple’s innovation.
  • Epic argued in its filing:
    • Epic Games, Inc. (“Epic”) has suffered harm from Apple’s conduct. (See Section IX below.)
      • Epic has an app store, the Epic Games Store, that it has launched on personal computers (“PCs”) and Macs. Epic would launch the Epic Games Store on iOS if it could, but Apple will not allow it to do so. If the Epic Games Store were on iOS, it would provide consumers with the benefits of competition in iOS app distribution.
      • Absent Apple’s rules, Epic would not distribute its apps through the App Store. (Sweeney.) Instead, Epic would distribute its apps through other means, including from its website and through EGS. (Sweeney.) By distributing its apps through the App Store, Epic has paid supra-competitive commissions and been deprived of the benefits that would flow from a competitive market. (Evans.)
      • Epic has its own payment processing functionality—Epic direct payment. Apple forbids Epic from using Epic direct payment on iOS, depriving Epic’s customers of payment choices that would allow Epic to offer lower prices and comprehensive customer service.
    • Many other app developers are harmed by Apple’s practices.  (See Part VIII below.)
      • There are app developers that are unable to innovate and produce products because of Apple’s practices. 
      • There are app developers that cannot offer safety features to users because of Apple’s practices.
      • There are app developers that cannot financially survive because of Apple’s practices, depriving customers of their offerings altogether.
• Muslim Advocates is suing Facebook, arguing that the platform has violated the consumer protection laws of the District of Columbia in attempt to circumvent 47 U.S.C. 230.
  • In its complaint, Muslim Advocates argued:
    • Facebook’s executives might believe that they are legally entitled to operate a social media platform that acts as a cesspool for hate. But what its executives certainly cannot do is misrepresent to Congress, national civil rights leaders, and its users in the District of Columbia that Facebook does, in fact, remove or take down content that violates its own standards and policies while routinely refusing to do so. Facebook has no free license to make false or deceptive statements in the District of Columbia as part of its longstanding campaign to make Congress and the American people believe that Facebook is a safe product and to discourage increased regulation by Washington. Just as car manufacturers cannot make false statements about the risk of their vehicles to drivers and pedestrians to drive up sales, Facebook and its executives cannot make false statements about the content and groups that they permit to flourish on Facebook in order to convince the public to keep using its platform and drive-up Facebook’s massive profits.
    • Facebook routinely refuses to remove hateful and harmful content because, at least in part, doing so is financially lucrative. But making false and deceptive statements about removing hateful and harmful content is illegal in the District of Columbia.
    • In this case, Muslim Advocates asks Facebook’s leaders to make a clear and simple choice: stop misrepresenting that you will remove content that violates your policies or conform your deeds to your words. Every business that operates in the District of Columbia must follow the same rules, and those rules offer no exception for publicly-traded tech companies.

Further Reading

• “A massive Facebook breach underscores limits to current data breach notification laws” by Tonya Riley — The Washington Post. Facebook does not appear to have alerted users of the massive breach of data, and there is no federal data breach law that would require it to. Perhaps states will allege violations of their data breach laws. As a number of experts point out in this piece, despite the size of the breach, Members of Congress are not screaming for hearings, which is maybe a commentary on the regularity of breaches or their focus on other tech issues.
• “How Facebook’s Ad System Lets Companies Talk Out of Both Sides of Their Mouths” By Jeremy Merrill — The Markup. No one should be surprised that advertisers are using microtargeting to show ads to people based on their political persuasion.
• “How the far-right group ‘Oath Enforcers’ plans to harass political enemies” By Jason Wilson — The Guardian. Sounds like right wing groups may escalate their harassment activities.
• “YouTube says it’s getting better at taking down videos that break its rules. They still number in the millions.” By Gerrit De Vynck — The Washington Post.
• “China researchers face abuse, sanctions as Beijing looks to silence critics” By Lily Kuo and Gerry Shih — The Washington Post.

Coming Events

• On 20 April, the Senate Commerce, Science, and Transportation Committee will hold a hearing titled “Strengthening the Federal Trade Commission’s (FTC) Authority to Protect Consumers” with the four FTC commissioners.
• The House Agriculture Committee will hold a hearing titled “Rural Broadband – Examining Internet Connectivity Needs and Opportunities in Rural America” on 20 April.
• On 21 April, the Senate Judiciary Committee’s Intellectual Property Subcommittee will hold a hearing titled “Improving Access and Inclusivity in the Patent System: Unleashing America’s Economic Engine.”
• The Senate Judiciary Committee’s Competition Policy, Antitrust, and Consumer Rights Subcommittee will hold a hearing titled “Antitrust Applied: Examining Competition in App Stores” on 21 April.
• The House Energy and Commerce Committee’s Communications and Technology Subcommittee will hold a hearing titled “Leading the Wireless Future: Securing American Network Technology” on 21 April.
• On 21 April, the Senate Armed Services Committee’s Personnel Subcommittee will hold a hearing “on the current and future cyber workforce of the Department of Defense and the military services.”
• On 21 April, the Senate Armed Services Committee’s Emerging Threats and Capabilities Subcommittee will hold a hearing “on science and technology, technology maturation, and technology transition activities.”
• The Federal Communications Commission (FCC) will hold an open meeting on 22 April with this draft agenda:
  • Text-to-988. The Commission will consider a Further Notice of Proposed Rulemaking to increase the effectiveness of the National Suicide Prevention Lifeline by proposing to require covered text providers to support text messaging to 988. (WC Docket No. 18-336)
  • Commercial Space Launch Operations. The Commission will consider a Report and Order and Further Notice of Proposed Rulemaking that would adopt a new spectrum allocation for commercial space launch operations and seek comment on additional allocations and service rules. (ET Docket No. 13-115)
  • Wireless Microphones. The Commission will consider a Notice of Proposed Rulemaking that proposes to revise the technical rules for Part 74 low-power auxiliary station (LPAS) devices to permit a recently developed, and more efficient, type of wireless microphone system. (RM-11821; ET Docket No. 21-115)
  • Improving 911 Reliability. The Commission will consider a Third Notice of Proposed Rulemaking to promote public safety by ensuring that 911 call centers and consumers receive timely and useful notifications of disruptions to 911 service. (PS Docket Nos. 13-75, 15-80; ET Docket No. 04-35
  • Concluding the 800 MHz Band Reconfiguration. The Commission will consider an Order to conclude its 800 MHz rebanding program due to the successful fulfillment of this public safety mandate. (WT Docket No. 02-55)
  • Enhancing Transparency of Foreign Government-Sponsored Programming. The Commission will consider a Report and Order to require clear disclosures for broadcast programming that is sponsored, paid for, or furnished by a foreign government or its representative. (MB Docket No. 20-299)
  • Imposing Application Cap in Upcoming NCE FM Filing Window. The Commission will consider a Public Notice to impose a limit of ten applications filed by any party in the upcoming 2021 filing window for new noncommercial educational FM stations. (MB Docket No. 20-343)
  • Enforcement Bureau Action. The Commission will consider an enforcement action.
• On 29 April, the Commerce, Science, and Transportation Committee will consider the nomination of Eric Lander to be Director of the Office of Science and Technology Policy (OSTP).
• The Federal Trade Commission (FTC) will hold a workshop titled “Bringing Dark Patterns to Light” on 29 April.
• The Department of Commerce’s National Telecommunications and Information Administration (NTIA) will hold “a virtual meeting of a multistakeholder process on promoting software component transparency” on 29 April.
• On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

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