Washington state privacy and municipal broadband bills head to the House floor after getting fiscal OKs Thursday. The House Appropriations Committee voted 19-14 for the Senate’s privacy bill (SB-5062), including last week’s Judiciary Committee changes, opposed by industry (see 2104010049), to add a private right of action and sunsetting companies’ right to cure. The committee voted 21-12 for the municipal bill (SB-5383) after adopting an amendment by unanimous voice vote. Rep. Drew Hansen (D), sponsor of a House muni bill (HB-1336), said at the webcast meeting that SB-5383 sponsor Sen. Lisa Wellman (D) suggested the amendment to her bill. Rep. Matt Boehnke said he and other Republicans are mixed on the bill because it “reduces barriers to access” but may not sufficiently target unserved areas.
The U.S. Supreme Court should decline again to review when it’s OK for police to require someone to unlock an encrypted cellphone, New Jersey said Friday in docket 20-937. In Andrews v. New Jersey, a prosecutor secured a court order directing Robert Andrews, an Essex County sheriff's officer the time, to turn over passwords for two cellphones. Andrews challenged, citing Fifth Amendment protections, but the New Jersey Supreme Court said those protections don’t apply to passwords. No new circuits or state supreme courts have weighed in since October, when the high court chose not to hear a similar Pennsylvania case (see 2010050042), New Jersey told SCOTUS. "Petitioner claims a different result is nevertheless warranted, but he faces a significant threshold problem: Petitioner has not yet gone to trial, let alone been convicted and sentenced.” Future trial court proceedings “may obviate the need for review of any Fifth Amendment issues in this case,” the state said. New Jersey disagreed there's a judicial split over application of the “foregone conclusion” doctrine, which says it’s not self-incriminating to give the state information it already knows. “Petitioner alleges a split over whether a suspect could be required to verbally ‘communicate’ the ‘pure testimony’ of his device’s passcode. ... Yet in this case, Petitioner will be allowed to directly enter the passcode without divulging it.” The state Supreme Court was correct, New Jersey said. "Whenever a suspect enters his passcode, he is only confirming that he ... knows the code. If the government knows as much, that suspect has not incriminated himself and the Fifth Amendment is not offended. ... A contrary rule would elevate form over substance, allowing the State to enforce a search warrant if a device is protected by biometrics but not by a passcode. And it would offer those seeking to evade a lawful search warrant a path to do so.” The American Civil Liberties Union and Electronic Frontier Foundation support SCOTUS hearing the New Jersey case (see 2101080057).
Washington state House appropriators were expected to vote Thursday afternoon on state privacy and municipal broadband bills. Earlier at the livestreamed hearing, the tech industry and other businesses told the Appropriations Committee that it’s too hard to comply with last week’s Judiciary Committee changes to SB-5062, which included adding a private right of action and sunsetting companies’ right to cure (see 2103260034). The American Civil Liberties Union said the bill lacks teeth to ensure compliance. Such disagreement shows the bill is “actually a good compromise,” testified Common Sense Media Director-State Advocacy Joseph Jerome. The Internet Association wants the privacy bill restored to the measure that passed the Senate, said Rose Feliciano, director-state government affairs, Northwest. She complained about “zero public input” on the Judiciary Committee’s changes, echoing comments by Washington Technology Industry Association and Association of Washington Business witnesses. Funding for attorney general enforcement of the privacy bill is “grossly inadequate to address the scope of the problem," said ACLU-Washington attorney Bill Block, citing a fiscal note saying the AG would get support for 1.2 attorneys and 3.6 full-time equivalents (FTEs). “It assumes only three full investigations and no litigation a year.” The private right is toothless because Block doubts individuals will sue if they can’t seek damages, he said. The Washington Independent Telecommunications Association will take a “leap of faith” and support SB-5383 to loosen municipal restrictions if appropriators adopted the committee amendment, said Executive Director Betty Buckley. The Washington Public Utility Districts Association also supported the bill with those changes.
A federal court agreed with CTIA that a Kentucky 911 law conflicts with the 2018 federal Wireless Telecommunications Tax and Fee Collection Fairness Act. Responding to that federal statute, the 2020 state law made Lifeline providers directly liable for 911 fees and barred them from passing the charge to users. In an opinion (in Pacer) entered Tuesday, U.S. District Court in Frankfort, Kentucky, granted an injunction and restraint against the Kentucky 911 Service Board in case 3:2020-cv-00043. Judge Gregory Van Tatenhove agreed with industry that the Kentucky law is preempted by Section 1510 of the Fairness Act, which limits states from requiring someone out-of-state from collecting state or local fees. “Though the Board alleges that Kentucky’s intention” with the 2020 law “was to comply with Section 1510, the state has failed to do so,” wrote Van Tatenhove. The judge disagreed with CTIA that the law violated two sections of the Communications Act, and he didn’t address the association’s constitutional claims. Section 254(f) on USF doesn’t preempt the Kentucky charge because the fee “has no relation to the manner by which Kentucky operates its universal service fund,” he said. Section 332(c)(3) stopping states’ from regulating wireless provider rates and entry can’t “be read so broadly as to prevent any incidental effects on entry or rates that a [statute] might impose,” he said. The judge disagreed with the state board that CTIA lacks standing as an association representing affected carriers and that Communications Act Section 616a-1(f)(1) exempts state 911 charges from preemption. Such a “broad reading ... would allow states to impose extreme requirements, like the taking of large portions of the service providers’ subsidies, in the name of ‘collecting fees for 911 services,’” he wrote. CTIA is glad the court recognized that the Kentucky law "discriminated against Lifeline providers serving low income consumers," said General Counsel Tom Power. "We are committed to working with policymakers at all levels to ensure all Americans benefit from wireless connectivity and ensure that 9-1-1 systems are appropriately funded." The Kentucky board didn’t comment.
“It’s time to be more ambitious nationwide” on minimum broadband speeds, FCC acting Chairwoman Jessica Rosenworcel said Tuesday at a livestreamed California Public Utilities Commission workshop. Fiber is “future-proof,” and “we don’t have to wait ... any longer” for the private sector, said California Assembly Member Cecilia Aguiar-Curry (D), who's co-sponsoring a bill to fund and revamp the California Advanced Services Fund (CASF) this year.
The Texas Public Utility Commission can't decline to fully fund state USF when it disagrees with state policy, rural telco groups argued at Monday's livestreamed argument at the 250th District Court in Travis County. The Texas Statewide Telephone Cooperative Inc. (TSTCI) and Texas Telephone Association (TTA) sued the PUC in January because members face reductions in Texas USF (TUSF) support due to the PUC refusing to raise the contribution rate (see 2101260046).
The Washington House broke with the Senate again on enforcement issues that stymied past state privacy legislation. Before voting 11-6 at a livestreamed meeting to clear SB-5062, the House Civil Rights & Judiciary Committee adopted by voice an amendment by Chair Drew Hansen (D) that included adding a private right of action and sunsetting a right-to-cure provision after one year. Municipal broadband and 988 bills advanced in later meetings Friday.
A Washington state Senate committee cleared the House’s muni broadband bill (HB-1336) at a livestreamed meeting Thursday, despite multiple members describing their ayes as reluctant. Seven members of the Technology Committee voted yes, two voted to move the bill along “without recommendation,” and three voted no. The panel adopted an amendment by Sen. Shelly Short (R) to add increasing broadband access to a list of statutory reasons why a locality could receive financial assistance. The committee rejected other amendments by Republicans who said they wanted to stop cross-subsidization, focus funds on unserved areas and keep the playing field level with private providers. Chairman Reuven Carlyle (D) seeks a more strategic approach but voted without recommendation to clear the bill. Sen. Lisa Wellman (D), who has a rival plan (SB-5383) with more constraints on public utility districts (PUDs) providing broadband, said she voted yes without recommendation in hopes the bill can be sharpened, including focusing on unserved areas. Wellman’s bill is a more “measured, practical approach,” said Sen. Steve Hobbs (D), though he voted yes on HB-1336. Sen. Tim Sheldon (D), a former PUD commissioner, said he’s an “enthusiastic yes” and thinks the bill can be melded with Wellman’s. Lawmakers shouldn't take lightly allowing public providers into retail broadband, said Short. HB-1336 turns broadband into a public utility, which probably will reduce private investment, ranking member Doug Ericksen (R) warned: “That’s a big decision.” The House Community and Economic Development Committee has a vote scheduled Friday on SB-5383.
A California snag could keep Frontier Communications from emerging from bankruptcy until mid-April, though the carrier said it needed to close by the end of March. It got OK from the California Public Utilities Commission last week and is trying to resolve disagreement with the agency over an eleventh-hour revision to the telco’s settlement with public advocates and a union (see 2103190031). The commission’s “last minute change upset the settlement apple cart,” and the agency and parties must resolve differences “promptly given the looming bankruptcy deadlines,” said former CPUC and FCC Commissioner Rachelle Chong Thursday.
Colorado Senate President Pro Tempore Kerry Donovan (D) received threats on social media for her proposal to stop hate speech on those platforms, she told a Senate State Committee livestreamed hearing: "This bill is a new idea in an uncomfortable space.” The committee voted 3-2 Tuesday to adopt the bill with an amendment proposed by Donovan to order a study. The original bill (SB-132) would have created a digital communications division and commission to regulate social media platforms. "The division shall investigate and the commission may hold hearings on claims filed with the division alleging that a digital communications platform has allowed a person to engage in one or more unfair or discriminatory digital communications practices on the platform," including hate speech, intentional disinformation and conspiracy theories, it said. Social media companies have been "petulant children" for not acknowledging what happens on their platforms, said Donovan, author of Colorado's 2019 net neutrality law. Their business model is to keep people engaged online and gather their information, she said. "What we are seeing from these social media companies is not a bug." The Senate leader added, "Russia didn't hack Facebook. It just used the platform.” The Internet Association didn't comment Wednesday. Government should “step in and bring an ax down to start protecting consumers,” testified Joe Toscano, a former Google consultant. “We are not their customer. We are their product.” The Computer and Communications Industry Association worried "that Colorado is one of multiple states proposing a patchwork of contradictory regulations. Complying with these would be difficult and costly for all platforms, particularly so for smaller companies." CCIA supports "the decision to study consumer protection concerns related to digital communications platforms," said President Matt Schruers Wednesday. "We encourage the study committee to consult with industry and issue area experts.”