Expect to hear from consumer groups, industry and privacy law experts at the Feb. 27 data privacy hearing (see 1902080051), Senate Commerce Committee Chairman Roger Wicker, R-Miss., told us. A tech lobbyist and two industry officials said the committee is considering the Internet Association and the Interactive Advertising Bureau for testimony. The industry people said a potential third witness is former FTC Chairman Jon Leibowitz, part of a group that discussed privacy with committee members in January (see 1901240036). The committee hasn't confirmed witnesses, a spokesperson said Tuesday.
Karl Herchenroeder
Karl Herchenroeder, Associate Editor, is a technology policy journalist for publications including Communications Daily. Born in Rockville, Maryland, he joined the Warren Communications News staff in 2018. He began his journalism career in 2012 at the Aspen Times in Aspen, Colorado, where he covered city government. After that, he covered the nuclear industry for ExchangeMonitor in Washington. You can follow Herchenroeder on Twitter: @karlherk
Understanding how firms like Facebook and Google profit from zero-price models can help enforcers identify anticompetitive behavior, said DOJ Antitrust Division Chief Makan Delrahim at a Silicon Flatirons event Monday. Offering products for “free” is nothing new, he said, citing radio, broadcast TV and newspaper models that existed before the internet. He argued internet users have become the “input” of products sold to advertisers. Enforcers shouldn’t exempt zero-price model firms from antitrust scrutiny, he said. Just because there’s no price doesn’t mean there’s no market or potential for abuse, he argued. Market power isn't unlawful on its own, he said: The question is whether an incumbent, regardless of size, is harming competition. Privacy is best dealt with through legislation, not antitrust law, said FCC Chief Economist Babette Boliek. EU enforcers might have “merger remorse” over Facebook’s buys of Instagram and WhatsApp, she said, citing recent antitrust action against Facebook in Germany (see 1902070060). State attorneys general and federal agencies are “rightfully focusing more attention on whether [tech] firms are living up to existing [competition] laws on the book,” said FTC Commissioner Rohit Chopra Sunday: “Three threats and challenges” posed by the tech sector relate to fair economic competition, civil rights and threats to democracy. Enforcers should question whether merger activity promotes innovation or allows “corporate royalty to hold on to their reign,” he said.
President Donald Trump signed an executive order Monday directing federal agencies to “prioritize investments” in artificial intelligence R&D. The American Artificial Intelligence Initiative promotes long-term research, access to federal data, novel AI applications and AI skills training for the federal workforce.
Intelligence agencies need to re-examine federal guidance, last updated in 2011, for collecting public-facing online and social media data, Alexander Joel, Office of the Director of National Intelligence civil liberties chief, told the Privacy and Civil Liberties Oversight Board Friday. Basic principles guiding agencies are “good ones,” Joel said during PCLOB’s first public hearing since May 2015. Agencies worry about First Amendment protections and whether officials should be explicitly linked to a person’s social network to collect public-facing data, Joel said. Collecting publicly facing data on individuals can be critical to developing overseas intelligence and preparing data for policymakers, he said.
The Office of the U.S. Trade Representative should defend U.S. interests against intellectual property threats in the EU, China and various countries, tech groups commented through Thursday night. USTR collected comments for its Special 301 report on international IP practices. Copyright safe harbors included in the Digital Millennium Copyright Act and exceptions like fair use are critical, the Internet Association said, citing IP threats from the EU, China and others. Efforts to chip away at the safe harbor framework “threaten the ability of internet companies to expand globally by eliminating” copyright certainty, IA said. BSA|The Software Alliance cited “digital protectionism and isolationism.” Restrictions on “cross-border data transfers; coercive technology transfer; and discrimination against foreign companies, products, and technologies” are counter to U.S. interests, BSA said. The Computer & Communications Industry Association asked USTR to recognize that Europe is attempting to weaken liability protections and enact “copyright policies that will likely have significant negative consequences for the digital economy” like “snippet taxes.” Counterfeiting and piracy in China “remain at epidemic levels,” the U.S. Chamber of Commerce said. Ongoing trade negotiations offer opportunity for the U.S. and China to address IP protection and technology transfer issues, the chamber said. Theft and infringement in China continue to put the software industry at risk, ACT|The App Association said, recommending China remain on the priority watch list. Algeria, Argentina, India, Indonesia, Kuwait, Russia and Ukraine also should remain on the list, ACT said. Public Citizen raised concerns about Malaysia, which hasn't been on the watch list since 2012.
The Senate Commerce Committee is eyeing a potential privacy hearing, Sen. John Kennedy, R-La., told us Wednesday. The hearing, to be held potentially in late February or early March, depends on resolving overlapping jurisdictional issues with the Banking Committee, said Kennedy, a privacy-minded lawmaker who sits on Banking but not Commerce. It’s unclear what witnesses Commerce might try to gather for a possible hearing, Kennedy said. Commerce and Banking didn’t comment.
Rep. Hakeem Jeffries, D-N.Y., is working to reintroduce the Small-Claims Enforcement (Case) Act (see 1804240071) but wants to secure a lead Republican sponsor to replace retired Rep. Tom Marino, R-Pa., Jeffries told us Wednesday (see 1901170048). The bill as originally written would establish a voluntary small claims board within the Copyright Office, allowing copyright owners an alternative to bringing infringement claims to federal court. Jeffries noted support for the bill from House Judiciary Chairman Jerry Nadler, D-N.Y., ranking member Doug Collins, R-Ga., and former Chairman Bob Goodlatte, R-Va. “We’re committed to getting that [bill] done,” Collins told us. Jeffries said he’s in talks with several offices to decide who’s in the best position to lead Republicans. Collins said he supports the bill but wants another Republican to work on the legislation. The bill last year had 10 Democrat and six Republican sponsors.
Neomi Rao told the Senate Judiciary Committee Tuesday she would uphold the Chevron regime, if confirmed to the D.C. Circuit. “Chevron is a precedent of the Supreme Court, and yes, I would follow it,” Rao, President Donald Trump’s pick to replace now-Justice Brett Kavanaugh, told lawmakers during a confirmation hearing.
House Intellectual Property Subcommittee Chairman Hank Johnson, D-Ga., can hold copyright hearings at the subcommittee level in 2019, but the House Judiciary Committee will handle markups, his office told us. That's a shift from then-subcommittee Chairman Darrell Issa, R-Calif., who didn’t have copyright hearings or markups in 2018 at the direction of then-committee Chairman Bob Goodlatte, R-Va. (see 1901080033). Both men have retired.
Arkansas Attorney General Leslie Rutledge (R) is probing Facebook’s use of consumer data, a spokesperson told us Friday. Rutledge “is investigating the use of consumer data on social media and other internet platforms to ensure appropriate safeguards for consumers and protection against security breaches that could be harmful to Arkansans,” the spokesperson wrote, not saying whether the inquiry is directly related to the Cambridge Analytica privacy breach or linked to a multistate investigation led by Democratic state AGs (see 1902010049). Facebook previously said it’s in contact with AGs from several states. “More regulation of the internet” is needed, the platform conceded Monday. The company welcomes “smart” legislation and will “work with lawmakers to achieve it,” it said. “Simplicity” is needed in policy discussions, FCC Commissioner Jessica Rosenworcel tweeted Sunday: “The average person would have to spend 76 working days to read all the digital privacy policies they agree to in the span of a year ... So much fine print in so many places.” Facebook outlined ways it’s addressing privacy issues, foreign interference, safety issues and other concerns: It removes millions of fake accounts to combat election interference and misinformation; more than 30,000 staffers work on safety and security; and staff now detect 99 percent of terrorist-related content before it’s reported, 97 percent of violence and graphic content, and 96 percent of nudity. The FTC can become the “privacy watchdog that this era so desperately needs” if Congress empowers and properly funds the agency, The New York Times editorial board wrote Saturday: “Uninformed, non-negotiated” consent agreements included in overly complex privacy policies shouldn’t be the requirement for using “services that are often necessary for civic life.”