Other Developments, Further Reading, and Coming Events (19 May 2021)

5G, Coming Events, Cybersecurity, Data Flows, Data Protection, data security, EU, FCC, FTC, Further Reading, Misinformation, News Industry, OMB, Other Developments, Section 230, Social Media, Technology, Telecommunications 15 Minutes

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Other Developments

  • A key subcommittee chair and another Member have introduced a new bill to reform 47 U.S.C. 230 (Section 230). The House Energy and Commerce Committee’s Consumer Protection and Commerce Subcommittee Jan Schakowsky (D-IL) and Representative Kathy Castor (D-FL) introduced the “Online Consumer Protection Act” (OCPA) (H.R.3067) that “will address shortcomings of Section 230 of the Communications Decency Act, which, along with overly broad court rulings on it, have failed to hold online platforms accountable to consumers.” According to their fact sheet, OCPA would:
    • Require social media platforms and online marketplaces to establish, disclose, and maintain written terms of service. Required disclosures include how the platform handles health misinformation/disinformation, election misinformation/disinformation, and other important consumer disclosures.
    • Require social media platforms and online marketplaces to establish a consumer protection program. This would ensure compliance with applicable consumer protection laws and establish content and conduct that are permissible on the platform.
    • Hold companies accountable when they fail consumers. Directs the FTC to issue rules under the APA to implement this Act and allows the FTC to seek civil penalties for violations of this Act. This section also provides for a private right of action by individuals harmed by violations of this Act and invalidates forced arbitration agreements. State attorney generals may also bring enforcement actions for violations of this Act, including seeking civil penalties and restitution.
    • Importantly, the bill clarifies Section 230 of the Communications Decency Act does not limit liability with respect to violations of this Act. This section also explicitly states that this Act does not preempt State or local laws.
  • Amazon has come out foursquare against the “The Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers (INFORM Consumers) Act” (S.936) by arguing that the legislation helps large retailers and not smaller ones as proponents have claimed. Amazon asserted:
    • Congress and various state legislatures are considering legislation (called “INFORM Act” bills) pushed by some big-box retailers, including Home Depot and RILA, the Retail Industry Leaders Association, which purports to curtail the sale of counterfeit and stolen goods online. In reality, this legislation favors large brick-and-mortar retailers, at the expense of small businesses that sell online, while doing nothing to prevent fraud and abuse or hold bad actors accountable. If Congress and states want to actually stop bad actors from harming consumers, they should instead pass legislation that increases the penalties against online criminals and provides greater resources for law enforcement.
    • Senate Judiciary Committee Chair Dick Durbin (D-IL) and Senator Bill Cassidy (R-LA) reintroduced the INFORM Consumers Act in March who argued in their press release:
      • The INFORM Consumers Act directs online marketplaces to verify high-volume third-party sellers by acquiring the seller’s government ID, tax ID, bank account information, and contact information. High-volume third-party sellers are defined as vendors who have made 200 or more discrete sales in a 12-month period amounting to $5,000 or more.
      • The legislation instructs online marketplaces to ensure that their high-volume third-party sellers disclose to consumers basic information including the seller’s name, business address, email address, phone number.
      • The online marketplace will also need to supply a hotline to allow customers to report to the marketplace suspicious marketplace activity such as the posting of suspected stolen, counterfeit, or dangerous products. The bill presents an exception for individual high-volume third-party sellers that permits them not to have their personal street address or personal phone number revealed to the public if they respond to consumers’ questions over email within a reasonable timeframe. The bill’s requirements would be implemented by the FTC and violations would be subject to civil penalties.
  • The United Nations’ (UN) Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Irene Khan issued a report on Disinformation and freedom of opinion and expression. The Special Rapporteur summarized the report:
    • In the present report, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression examines the threats posed by disinformation to human rights, democratic institutions and development processes. While acknowledging the complexities and challenges posed by disinformation in the digital age, the Special Rapporteur finds that the responses by States and companies have been problematic, inadequate and detrimental to human rights. She calls for multidimensional and multi-stakeholder responses that are well grounded in the international human rights framework and urges companies to review their business model and States to recalibrate their responses to disinformation, enhancing the role of free, independent and diverse media, investing in media and digital literacy, empowering individuals and rebuilding public trust.
  • Senate Minority Whip John Thune (R-SD) and Senate Commerce, Science, and Transportation Committee Ranking Member Roger Wicker (R-MS) wrote the Government Accountability Office (GAO) asking “that they conduct an independent review of the Federal Communication Commission’s (FCC’s) Emergency Broadband Benefit (EBB) program to ensure its success” and for “a comprehensive review of the program to determine its effectiveness and efficiency.” Thune and Wicker added:
    • The goals of the EBB program are laudable, but as responsible stewards of taxpayer dollars, it is imperative Congress and GAO conduct proper oversight.  The FCC quickly adopted rules to establish the program, but despite the program not disbursing any funds to its intended recipients—consumers who are struggling to pay for their broadband service during the pandemic—there have already been calls for billions of dollars in additional support for the EBB program.  Before additional funding is considered for this untested program, we believe proper oversight of this publicly funded program is critical to allowing Congress to thoroughly and carefully consider the program’s benefits.
    • Therefore, we request that GAO undertake a comprehensive review of the EBB program to determine the effectiveness of the program.  Additionally, we request GAO identify possible actions Congress may need to consider taking to address any deficiencies in the program identified by GAO. 
  • The government of Prime Minister Boris Johnson has laid before the United Kingdom’s Parliament the Information Commissioner’s Data Sharing Code of Practice, “a practical guide for organisations about how to share personal data in compliance with data protection law” required by the Data Protection Act 2018. The code will sit before Parliament for 40 days before taking force. The Information Commissioner’s Office (ICO) stated:
    • The new data sharing code aims to give businesses and organisations the confidence to share data in a fair, safe and transparent way, and it dispels many of the remaining myths about data sharing. The code will guide organisations through the practical steps they need to take to share data while protecting people’s privacy.
  • The House Energy and Commerce Committee Chair and Ranking Member wrote United States Trade Representative Katherine Tai urging her not to include language perpetuating 47 U.S.C. 230 in any trade deals she negotiates while Congress considers changing the liability shield. Representatives Frank Pallone Jr (D-NJ) and Cathy McMorris Rodgers (R-WA) argued:
    • We write to express our concern regarding the inclusion of language resembling Section 230 of the Communications Decency Act of 1996 in any trade agreements while the Congress is seriously considering modifications to this statute. The Committee shared the same bipartisan concern during negotiations of the United States-Mexico-Canada Agreement.
    • Section 230 shields online platforms from some of the liability associated with third-party content posted on those platforms. As you may know, the effects of Section 230 and the appropriate role of such a liability shield have become the subject of much debate in recent years. While we take no view on that debate in this letter, we find it inappropriate for the United States to export language mirroring Section 230 while such serious policy discussions are ongoing. For that reason, we do not believe any provisions regarding intermediary liability protections are ripe for inclusion in any trade deal going forward. Given that our Committee closely oversees Section 230 and all portions of the Telecommunications Act of 1996, we also hope the Office of the United States Trade Representative will consult our Committee in the future in advance of negotiating on these issues.
  • The Council of the European Union “decided to prolong the framework for restrictive measures against cyber-attacks threatening the EU or its member states for another year, until 18 May 2022.” The Council stated:
    • This framework allows the EU to impose targeted restrictive measures on persons or entities involved in cyber-attacks which cause a significant impact, and constitute an external threat to the EU or its member states. Restrictive measures can also be imposed in response to cyber-attacks against third states or international organisations where such measures are considered necessary to achieve the objectives of the Common Foreign and Security Policy (CFSP).
    • Sanctions currently apply to eight individuals and four entities, and include an asset freeze and a travel ban. Additionally, EU persons and entities are forbidden from making funds available to those listed.
  • The Office of Management and Budget (OMB) and General Services Administration (GSA) announced “an updated and more flexible model for distributing to federal agencies the $1 billion from the Technology Modernization Fund (TMF)…provided by Congress as part of the American Rescue Plan.” OMB and GSA stated:
    • The Technology Modernization Fund (TMF) Board, whose members provide funding recommendations and monitor progress and performance of approved modernization projects, will focus on projects that cut across agencies, address immediate security gaps, and improve the public’s ability to access government services. The board will give top priority to these four proposal categories:
      • Modernizing high-priority systems
      • Cybersecurity
      • Public-facing digital services
      • Cross-government services and infrastructure
    • In order to be able to respond with urgency to the current crisis, repayment will shift from the full repayment model for all projects to a model allowing more flexibility. Repayment will now fall into three categories to optimize for project success and to deliver the highest value to the public:
      • Full repayment: For projects that yield direct financial savings that can be used to fully repay the TMF.
      • Partial repayment: For projects with strong positive impact and which will yield some financial savings, but where the proposing agency doesn’t expect to reach full cost recovery.
      • Minimal repayment: For projects aimed at tackling the most urgent IT issues facing our government, including critical cybersecurity improvements and initiatives that help agencies meet the demands of the COVID-19 pandemic, but which are unlikely to create direct cost savings.
    • The TMF Board encourages agencies to submit project proposals by June 2, 2021 for prioritized consideration. Applications will be considered on a rolling basis.
  • According to the 5G For 12GHZ group’s press release, “[m]ore than 20 prominent public interest groups, trade associations and companies in the telecommunications sector today launched the 5G for 12GHz Coalition, urging the Federal Communications Commission (FCC) to act swiftly and modernize decades-old rules to allow the critical capacity in the12 GHz spectrum band to be utilized for 5G.” The coalition “calls on the FCC to act swiftly on its Notice of Proposed Rulemaking (Expanding Flexible Use of the 12.2-12.7 GHz Band, et al., WT Docket No. 20-443, et al) to allow the 12 GHz band to unlock the power of 5G for all Americans.”

Further Reading

  • “Cloud software marketplaces are linchpin to driving innovative technology solutions into DoD” By Matthew Cornelius — C4ISRNet. The American military is entering an era of great power competition, where agility and quick adaptation matters more than ever. For too long, emerging capabilities failed to bridge the valley of death and get integrated into Department of Defense programs of record. In recent years, the DoD has launched groups aiming to change the tech insertion reality, such as the Defense Innovation Unit, Joint Artificial Intelligence Center and Army Futures Command, which accelerate adoption of innovative technologies across the department.
  • “What Roku and Google are fighting about: Video codecs, voice search and millions of eyeballs” By Janko Roettgers — Protocol. Roku and Google are at it again: In an email to its users and in a statement sent out to media Monday, Roku accused Google of anti-competitive behavior. The statement suggests that the search giant was using carriage negotiations for its YouTube TV service to enforce changes that would benefit its free YouTube app as well, and ultimately harm Roku’s business.
  • “Oracle Executive Solicits Information About ‘The Intercept’ Journalist” By Edward Ongweso Jr — Vice. On Wednesday, Ken Glueck, an executive vice president at Oracle, published an astonishing example of hostile public relations strategy―a 2,700-plus word screed decrying reporting by The Intercept’s Mara Hvistendahl as well as soliciting tips about her from random internet users. Oracle’s long-winded blog is the second such post centered around investigations by Hvistendahl laying out how the company is involved in surveillance systems within China. The first Oracle blog came after Hvistendahl’s story in February mapped out how Oracle marketed its software to Chinese police agencies. Wednesday’s Oracle blog post came after Hvistendahl published a story last week about Oracle doing business with a surveillance tech reseller in China that it named “partner of the year” in 2018. 
  • “How Big Tech got so big: Hundreds of acquisitions” By Chris Alcantara, Kevin Schaul, Gerrit De Vynck and Reed Albergotti — The Washington Post. You’re probably reading this on a browser built by Apple or Google. If you’re on a smartphone, it’s almost certain those two companies built the operating system. You probably arrived from a link posted on Apple News, Google News or a social media site like Facebook. And when this page loaded, it, like many others on the Internet, connected to one of Amazon’s ubiquitous data centers. Amazon, Apple, Facebook and Google — known as the Big 4 — now dominate many facets of our lives. But they didn’t get there alone. They acquired hundreds of companies over decades to propel them to become some of the most powerful tech behemoths in the world.
  • “Verizon and T-Mobile want your business more than ever right now” By Allison Johnson — Vox. It’s a good year for old, crappy phones. The dusty old phone in your desk drawer running Android frozen-dessert-something-or-other — the one that might have a cracked screen — saw its stock go up recently with two generous trade-in promotions. T-Mobile and Verizon are both offering to take your old, damaged phone off your hands and replace it with a shiny new 5G model. There are a couple of reasons for this generosity. Verizon, in particular, has written some big checks to pay for new C-band frequencies — highly desirable spectrum for 5G that offers good range and speed. The company has reassured its shareholders that the hefty expenditure will help grow its customer base and increase the amount of money it makes on existing accounts. It told investors at its March analyst event that “with C-band included, we think step-ups to premium [plans] will only accelerate.” So it’s unsurprising that the cracked phone deal requires a commitment to a “select unlimited plan.”
  • “First Amendment fantasies in the social media debate” By Laurence Tribe — The Hill. Privately owned social media platforms like Facebook have exploded with wealth and influence. These companies have thrived on an opaque business model that weaponizes a fantasy version of the First Amendment to justify offering users temptingly convenient forms of personalized information-sharing. Of course, we know now these services often end up manipulating the appetites of ordinary people, mining their habits and exploiting the resulting profiles by targeting what amounts to propaganda at those most likely to soak it up, spread it and end up being harmed by it. The recent brouhaha over Facebook’s exile of President Trump and its use of a self-appointed panel of overseers to duck responsibility for the harmful lies Trump and his followers propagated on its platform — and the deadly insurrection they used it to pull off — seems likely to be only the first of a series of showdowns with the likes of Trump, who is bound to keep trying to get back onto Facebook. The controversy over Facebook’s actions (or lack thereof) may well be just the latest in what look to be a series of close encounters with the death of democracy. Because we might not survive the next such encounter, Americans must understand how Facebook and other social media platforms hide behind a fictionalized account of the First Amendment purpose-built to shield them from essential government regulation. 

Coming Events

  • On 19 May, the House Ways and Means Committee will hold a hearing titled “Leveraging the Tax Code for Infrastructure Investment” but witnesses have not yet been announced.
  • The Senate Judiciary Committee’s Competition Policy, Antitrust, and Consumer Rights Subcommittee will hold a 19 May hearing titled “Antitrust Applied: Hospital Consolidation Concerns and Solutions” but no witnesses have been announced.
  • On 20 May, the House Appropriations Committee’s Defense Subcommittee will hold a closed hearing on the Intelligence Community’s World Wide Threat Assessment and the FY 2022 National Intelligence Program/Military Intelligence Program Posture with these witnesses:
    • The Honorable Avril Haines, the Director of National Intelligence
    • The Honorable David M. Taylor, Performing Under Secretary of Defense for Intelligence & Security, Department of Defense
  • The Commerce, Science, and Transportation will consider Eric Lander’s nomination to be the Director of the Office of Science and Technology Policy (OSTP) on 20 May.
  • The House Select Committee on the Climate Crisis will hold a 20 May hearing titled “Powering Up Clean Energy: Investments to Modernize and Expand the Electric Grid” with these witnesses:
    • Linda Apsey, President and CEO, ITC Holdings Corp. Apsey is responsible for the strategic vision and overall business operations of ITC, the largest independent electricity transmission company in the United States. Based in Michigan, the company owns and operates high-voltage transmission infrastructure in Michigan, Iowa, Minnesota, Illinois, Missouri, Kansas and Oklahoma, with plans underway to expand to Wisconsin.
    • Donnie Colston, Director, Utility Department, International Brotherhood of Electrical Workers (IBEW). Colston manages issues related to collective bargaining agreements, working conditions, safety-related work practices, and apprenticeship training. A utility lineman, he started his career in transmission and distribution construction before working as an electric troubleman. He has been a member of the IBEW Local Union 2100, which represents the employees of Louisville Gas and Electric Company (LG&E) and Kentucky Utilities Company (KU), for more than four decades.
    • Michael Skelly, Founder and President, Grid United. Skelly is a renewable energy entrepreneur and pioneer in the U.S. wind industry who currently leads Grid United, an early-stage transmission development company. He was previously the founder and president of Clean Line Energy, a company that successfully permitted some of the longest transmission lines in the United States in the last 50 years.
    • Emily Sanford Fisher, General Counsel, Corporate Secretary & Senior Vice President, Clean Energy Edison Electric Institute (EEI). Sanford Fisher manages EEI’s litigation and legal affairs at EEI, an association that represents all investor-owned electric companies in the United States. She also oversees and coordinates strategic clean energy engagement across EEI and across the federal government.
  • The House Armed Services Committee’s Cyber, Innovative Technologies, and Information Systems Subcommittee will hold a 20 May hearing titled “Reviewing Department of Defense Science and Technology Strategy, Policy, and Programs for Fiscal Year 2022: Fostering a Robust Ecosystem for Our Technological Edge” with these witnesses:
    • Ms. Barbara McQuiston, Acting, Under Secretary of Defense for Research and Engineering (USD(R&E)), Office of the Secretary of Defense
    • Dr. Philip Perconti, Deputy Assistant Secretary of the Army for Research and Technology (DASA R&T), Department of the Army
    • Ms. Joan “JJ” Johnson, Deputy Assistant Secretary of the Navy Research, Development, Test, and Engineering (DASN RDTE), Department of the Navy
    • Ms. Kristin Baldwin, Assistant Secretary of the Air Force for Acquisition, Technology and Logistics for Science Technology, and Engineering (SAF/AQR), Department of the Air Force
  • On 20 May, the House Veterans Affairs Committee’s Technology Modernization Subcommittee will hold a hearing titled “Cybersecurity and Risk Management at VA: Addressing Ongoing Challenges and Moving Forward” but no witnesses have been announced.
  • On 20 May, the Federal Communications Commission (FCC) will hold an open meeting with this tentative agenda:
    • Reducing Interstate Rates and Charges for Incarcerated People – The Commission will consider a Third Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rulemaking that, among other actions, will lower interstate rates and charges for the vast majority of incarcerated people, limit international rates for the first time, and seek comment on further reforms to the Commission’s calling services rules, including for incarcerated people with disabilities. (WC Docket No. 12-375)
    • Strengthening Support for Video Relay Service – The Commission will consider a Notice of Proposed Rulemaking and Order to set Telecommunications Relay Services (TRS) Fund compensation rates for video relay service (VRS). (CG Docket Nos. 03-123, 10-51)
    • Enforcement Bureau Action – The Commission will consider an enforcement action.
    • Enforcement Bureau Action – The Commission will consider an enforcement action.
  • On 27 July, 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.

Published by Michael Kans

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

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