House Commences With $3.5 Trillion Package

A number of House committees have marked up their sections of the “Build Back Better Act,” the $3.5 trillion package Democrats hope will enshrine significant policy changes in United States (U.S.) law. While there is doubt Democrats will be able to enact the package as conceived given the misgivings on centrist House and Senate Democrats who are signaling that they want a scaled-back bill. Consequently, whether Democrats can get a $3.5 trillion package to the White House is very much in doubt. This remains to be seen.

Nonetheless, moving from the big picture to the smaller, some House committees have already advanced legislation to the full House. This is, in part, because Speaker of the House Nancy Pelosi (D-CA) cut a deal with 10 House Democratic centrists to bring the “Infrastructure Investment and Jobs Act” (H.R.3684) to the House floor for a vote by 27 September in exchange for their vote on a rule allowing the $3.5 trillion package process to move forward. Pelosi and other Democrats, including President Joe Biden, had always linked the two bills as a means of keeping both the centrist and progressive wings of the Democratic party happy. Presumably, Pelosi’s plan to have the $3.5 trillion plan ready to go on or before 27 September, and so committees have swung into action.

The best place to start is with the committee that has jurisdiction over vast swaths of the technology world: the Energy and Commerce Committee. This week, the committee started marking up its chunk of the bill, some $486.5 billion, and this is ongoing as of today. However, we can look at the sections of the bill as introduced.

Subtitle O, as introduced, would provide the Federal Trade Commission (FTC) with $1 billion in funding available through the end of FY 2031 for:

Consumer Protection and Commerce Subcommittee Chair Jan Schakowsky (D-IL) offered an Amendment in the Nature of A Substitute to Subtitle O that revised the purpose of the $1 billion:

The only substantive difference is that Congress is suggesting or permitting the FTC to hire staff with these funds. Incidentally, I would note this is the first bill I can recall using the term “data abuse,” a term new to the FTC and some of its commissioners on how to view the ways entities are collecting, processing, and using personal data.

Republicans have offered a host of amendments to Subtitle O.

Most notably, Ranking Member Cathy McMorris Rodgers (R-WA) offered as an amendment to Subtitle O Representative Suzan DelBene’s (D-WA) “Information Transparency & Personal Data Control Act” (H.R.1816), a privacy bill that is more industry-friendly than other Democratic bills (see here for more detail and analysis.) This amendment fell on a party-line vote. It appears that Republicans made a tactical decision to try a Democratic bill instead of a Republican bill in an effort to split the Democratic side of the committee, but to no avail. It would not surprise me to learn that some Democrats would have made the point that such language would not likely survive the Senate’s Byrd Rule that strikes extraneous provisions from reconciliation bills.

Representative Kelly Armstrong (R-ND) offered an amendment barring the FTC from using any of the funds to pay experts or people outside the agency. Given that the FTC, like many other federal agencies, retains private sector experts, this would be an obstacle to the agency. This amendment failed on a party-line vote. Armstrong offered a related amendment requiring the FTC to report on retaining and paying for outside experts. This amendment was not voted upon.

Representative Larry Buchson (R-IN) offered this amendment:

This language would handcuff the FTC through an economic analysis requirement, a framework that privacy experts have previously criticized as hamstringing the agency visa vis privacy. This amendment was also not voted upon.

Republicans offered an amendment widening the type of experts the FTC should hire in line with recent Republican talking points on the harms social media and screens are doing to U.S. children and teens:

This too went down on a party-line vote.

Republicans offered substantive language to bar the transfer of “individually identifiable health information” of any American citizen to the People’s Republic of China (PRC):

Any violations of this bar would be treated as violations of existing FTC rules, meaning civil fines of over $43,000 could be levied for first offenses. This language presents some problems even though the PRC seems intent on hoovering up as much data as possible from Americans. First, it covers just American citizens. Not being an expert on data science, my guess is that the personal data of non-Americans may still inform the PRC and other nations about citizens. Second, naming the PRC in statute limits the FTC in responding to future threats from, say, the Russian Federation or Iran. The amendment went down on another party-line vote.

The next Republican amendment seems a bit outside the FTC’s lane:

Moreover, it would open the door to the FTC regulating the content of internet platforms, raising the question of whether the agency is situated or equipped to do so. In any event, it also fell on party-lines.

The final Republican amendment to the FTC section to get a vote also took aim at the PRC:

This seems like a thinly veiled shot at TikTok, and the Democrats voted it down.

Subtitle O was passed by the committee on, what else, a party-line vote.

Subtitle C would make funding available to a number of existing safe drinking water grant programs, some of which seem to allow the use of grant proceeds for cybersecurity and systems and data protection.

Moreover, in Subtitle J, the section on public health, $10 billion would be earmarked for construction and modernization of hospitals with an eye towards cybersecurity:

There are also billions for electric vehicles and loan programs at the Department of Energy for innovative and advanced technologies:

This week, the House Homeland Security Committee marked up its part of the “Build Back Better Act” that would give the U.S. Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) more funding for discrete purposes:

• $50 million for the for support of the Multi-State Information Sharing and Analysis Center;
• $25 million for the execution of a national multi-factor authentication campaign
• $400 million for the execution of Executive Order 14028 “Improving the Nation’s Cybersecurity”, specifically “including the implementation of multi-factor authentication, endpoint detection and response, improved logging, and securing cloud systems;”
• $50 million for the “expansion and operation of the Crossfeed program”
• $10 million for performing activities in support of the development of the continuity of the economy plan required under section 9603(a) of title XCVI of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
• $20 million “for expanding programs working with international partners on the protection of critical infrastructure;”
• $100 million “for cybersecurity workforce development and education, including providing education, training, and capacity development and to the Cybersecurity Education and Training Program,”
• $60 million for “enhancing the cloud architecture, migration advisory services, and cloud threat hunting capabilities of the Agency.”
• $75 million for “for expansion and operation of the CyberSentry program;”
• $50 million for “for researching and developing means to secure operational technology, including industrial control systems, against cybersecurity vulnerabilities;”
• $25 million for “for operating a cyber range”

Last week, during its markup of its portion of the $3.5 trillion budget reconciliation package, the House Oversight and Reform Committee added $3 billion for U.S. cybersecurity and information and communications technology (ICT) modernization. The committee adopted an Amendment In The Nature Of A Substitute, and Government Operations Subcommittee Chair Gerry Connolly (D-VA) offered an amendment successfully that adds to the bill the following:

• $1 billion for the Technology Modernization Fund, which would follow the $1 billion appropriated for program in the “American Rescue Plan Act of 2021.”
• $ 2 billion for the General Services Administration’s Federal Citizen Services Fund (FCSF), a program that received $150 million in this year’s COVID stimulus package. In its FY 2022 budget request, the agency explained:
  • [The FCSF] enables public access and engagement with the Government through an array of public and agency facing products and programs. The FCSF initiatives help individuals, businesses, other governments, and the media to easily interact with Federal information, services, benefits, and business opportunities. The FCSF supports agency facing programs that drive Government-wide transformation through shared services, platforms, and solutions. The programs funded by the FCSF also provide technical expertise to agencies to improve their operations and the public’s experience with Government in support of the Administration’s priorities and Cross-Agency Priority Goals. The FCSF supports extensive communities of practice to drive adoption and improvement of digital services while also helping agencies develop and share best practices. GSA will continue to leverage the FCSF to support initiatives that drive innovation in Government operations and improve the transparency, efficiency, and effectiveness of Federal operations and quality of Government services.

In a press release, the committee highlighted electric vehicle funding and asserted their provisions would:

• Provide critical funding to electrify the General Services Administration and United States Postal Service vehicle fleets by providing $12 billion to:
  • Position the federal government as a leader in modernizing vehicles to reduce carbon output;
  • Build charging stations and support infrastructure across the country; and
  • Take a major step towards a fully electric future for federal vehicles.

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