Florida’s social media law violates the First Amendment despite the state’s common-carrier arguments, groups argued Monday in supporting the tech industry’s lawsuit (see 2109220064) in case 21-12355 in the 11th U.S. Circuit Court of Appeals. SB-7072 makes it unlawful for sites to deplatform political candidates and requires sites be transparent about policing, unless the site owns a Florida theme park. Groups filing in support of the Computer & Communications Industry Association and NetChoice included tech and telecom interests, consumer advocates, publishers and media representatives. Filers included CTA, Engine, the Information Technology & Innovation Foundation, Chamber of Progress, TechNet, American Civil Liberties Union, Center for Democracy & Technology, Reporters Committee for Freedom of the Press, Cato Institute, TechFreedom and Authors Guild. The law is “a direct threat to healthy and safe online communities by restricting and penalizing online providers’ efforts to exercise their First Amendment rights to moderate content on their private platforms,” CTA argued with 10 other groups, including ITIF, TechNet and the Progressive Policy Institute. The law would open the door to “direct content regulation,” in service of government policing bias, “on the platforms that millions of Americans now use to get their news,” publisher and news associations wrote. The First Amendment “protects the exercise of editorial discretion, including by speakers that host others’ speech,” said CDT. Slapping the label “common carrier” on something doesn’t make it a reality, said TechFreedom: “Even if it did, common carriers retain their First Amendment rights, and they have much broader discretion to refuse service than SB 7072 allows for.”
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
Congress has more momentum for passing mandatory cyber reporting requirements than ever, but the two chambers face an uphill climb in reconciling specifics, experts told us.
Senate Commerce Committee ranking member Roger Wicker, R-Miss., told us he and Sen. Ed Markey, D-Mass., will meet soon to discuss potential updates to the Children's Online Privacy Protection Act. “We’re scheduled to put our heads together soon about that issue,” Wicker said last week. “I will reserve comment until after that. It may have to be after the break.”
State attorneys general are examining the impact of social media algorithms like those that keep young users hooked to apps like Facebook, Iowa Attorney General Tom Miller (D) told a National Association of Attorneys General event Monday. “We’re looking at it,” he said. “We’re trying to get up to speed on how algorithms are used, how they’re misused, either intentionally or unintentionally, and get into that concept and secure as much reform that we can.” It’s an issue getting increasing bipartisan attention on Capitol Hill (see 2110280067).
The White House is pressing Congress to pass legislation with $52 billion for U.S. chipmaking (see 2106090007), White House National Security Council Senior Director-International Economics and Competitiveness Peter Harrell told an AT&T livestream event Thursday. “The bigger picture is we’ve got to get the funding across the finish line,” he said. “Congress has to get the funding across the finish line, and we have to move on expanding capacity here at home and with our allies.”
The private sector should report major cyber incidents to the federal government, despite many company owners considering it a waste of time, Cybersecurity and Infrastructure Security Agency Director Jen Easterly told the House Homeland Security Committee Wednesday.
Legislation to require online marketplaces like Amazon to verify third-party sellers got strong bipartisan support from the Senate Judiciary Committee Tuesday. But leadership needs to confer with the Senate Commerce Committee, which has jurisdiction, said Judiciary Chairman Dick Durbin, D-Ill.
The Supreme Court declined to hear the American Civil Liberties Union’s case seeking access to Foreign Intelligence Surveillance Court (FISC) documents, on docket 20-1499. The ACLU argued the First Amendment provides a “qualified right of public access” to the court’s “significant opinions” on statutory and constitutional law. Justices Neil Gorsuch and Sonia Sotomayor dissented. The FISC and the Foreign Intelligence Surveillance Court of Review (FISCR) denied the ACLU access to secret opinions authorizing surveillance on U.S. citizens in 2016. The ACLU asked the high court to review a series of rulings denying access. The case presents questions about the “right of public access to Article III judicial proceedings of grave national importance,” Gorsuch wrote in the dissenting opinion Monday with Sotomayor. “Maybe even more fundamentally, this case involves a governmental challenge to the power of this Court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is?” The high court failed to “bring badly needed transparency to the surveillance court and to rulings that impact millions of Americans,” ACLU Senior Staff Attorney Patrick Toomey said . “Our privacy rights rise or fall with the court’s decisions, which increasingly apply outdated laws to the new technologies we rely on.” Because SCOTUS “refuses to let the American people see how their own constitutional rights are being interpreted, Congress’s responsibility to conduct aggressive oversight and end secret law is even more important,” said Sen. Ron Wyden, D-Ore.
The Senate should move quickly to confirm Jonathan Kanter as DOJ Antitrust Division chief so he can fill leadership gaps at the department, antitrust attorneys said in interviews. Some expect Kanter to get a 2021 vote, given support from the Senate Judiciary Committee last week (see 2110280044).
The Senate Judiciary Committee reported DOJ Antitrust Division nominee Jonathan Kanter to the Senate floor Thursday by voice vote (see 2110210033). John Cornyn, R-Texas, was the sole no vote. He said he shares Kanter’s concerns about the tech industry’s influence over consumers but is troubled by Kanter potentially moving away from the consumer welfare standard. Cornyn said Kanter has expressed interest in “competitive objectives” outside the traditional scope of antitrust and using antitrust as a “political hammer.” Sen. Amy Klobuchar, D-Minn., noted support for Kanter from a bipartisan group of nine former Antitrust Division chiefs (see 2109250003), saying he has the experience for the job. The committee 13-9 reported Lucy Koh, nominated to be 9th U.S. Circuit Court of Appeals judge. Voting against Koh were GOP Sens. Cornyn; Josh Hawley, Mo.; Mike Lee, Utah; Ted Cruz, Texas; Ben Sasse, Neb.; Tom Cotton, Ark.; John Kennedy, La.; Thom Tillis, N.C.; and Marsha Blackburn, Tenn.