Bipartisan legislation introduced Wednesday would require agencies, contractors and critical infrastructure operators to report cyberhacks within 24 hours of discovery (see 2103040066). Introduced by Senate Intelligence Committee Chairman Mark Warner, D-Va.; Vice Chairman Marco Rubio, R-Fla.; and Sen. Susan Collins, R-Maine, the Cyber Incident Notification Act includes liability protection in certain circumstances. Warner has predicted a bipartisan cybercrimes reporting bill (see 2106100053). Senate Environment and Public Works Committee members told a hearing the federal government should invest in resources to defend against cyberthreats to critical infrastructure. Cyber is a long-term, constantly evolving challenge, said Chairman Tom Carper, D-Del.: It requires “sustained federal investment, not one-time solutions.” Ranking member Shelley Moore Capito, R-W.Va., backed training exercises and information sharing between agencies. She’s looking forward to including cyber policies in committee legislation. The Cyberspace Solarium Commission’s March 2020 report concluded water utilities remain largely unprepared to defend networks against cyber disruption, testified Rep. Mike Gallagher, R-Wis., commission co-chair with Sen. Angus King, I-Maine. It's an “extremely dangerous” situation, said King, saying the next Pearl Harbor or Sept. 11, 2001, attack will be cyber-related. The private sector should have liability protection when sharing information because delays don’t work, said King. The government hasn’t made the necessary investments to protect transportation systems, which begins with cybersecurity, said ITS America CEO Shailen Bhatt. ITS recommended a more robust transportation cybersecurity strategy with requirements for transportation agencies to meet certain “marks” determined by the National Institute of Standards and Technology and the Center for Internet Security.
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
The FTC unanimously approved a policy statement Wednesday aimed at bolstering consumers’ rights to self-repair and access to third-party independent repairs by vowing to crack down on manufacturers whose restrictions are deemed to violate antitrust or consumer protection laws. The agency also rescinded a merger-related policy statement on a party-line vote (see 2107190066).
President Joe Biden will nominate Jonathan Kanter to lead DOJ’s Antitrust Division, the White House announced Tuesday. Congressional Democrats and consumer advocates called Kanter the right pick to strengthen antitrust enforcement against Big Tech. Some questioned the potential for Kanter to recuse himself in DOJ’s antitrust case against Google.
FTC scrutiny for the tech industry’s smaller and serial acquisitions will increase if commissioners rescind a 1995 policy statement Wednesday, as expected, antitrust attorneys told us. The commission meets Wednesday for its second open meeting under Chair Lina Khan (see 2107120065). It will vote whether to rescind the policy statement on prior notice and prior approval remedies in transactions.
President Joe Biden will nominate Jonathan Kanter to lead DOJ’s Antitrust Division, the White House announced Tuesday. Currently a partner at the Kanter Law Group, he previously served as an FTC Competition Bureau attorney.
Amazon and Facebook are attempting to “bully” the FTC by seeking recusal of Chair Lina Khan (see 2107140036), Senate Democrats said in interviews. Republicans were more hesitant to dismiss the filings but credited Khan’s approach. A former FTC general counsel and a legal scholar told us it’s unlikely the companies will succeed.
The Commerce Department is prioritizing regulation that protects intellectual property, human rights and privacy without slowing innovation, Secretary Gina Raimondo said Tuesday. Various legislators and officials at a National Security Commission on Artificial Intelligence summit called for international cooperation, investment and for setting artificial intelligence standards.
The FTC and DOJ will work to update mergers and acquisitions guidelines and begin interagency collaboration directed in President Joe Biden’s executive order, FTC Chair Lina Khan and Attorney General Merrick Garland responded to the EO Friday. Democratic senators and consumer groups welcomed Biden’s call for more vigorous and modernized antitrust. Industry groups shot back. See a news bulletin here and 2107090063 for the EO's telecom provisions.
President Donald Trump’s lawsuits against Facebook, Google and Twitter (see 2107070065) raise “an interesting argument” about when a private entity becomes a state actor subject to First Amendment restraints, FCC Commissioner Brendan Carr said Thursday. Supreme Court precedent establishes that a private entity effectively becomes a state actor when “sufficiently coordinating with government actors,” Carr said during an FCBA event: “We’ll see how that case plays out.” And there are examples of affirmative, anti-discrimination obligations placed on private entities that involve public accommodation law, said Carr. He described a spectrum of speech obligations for cases involving data roaming and cable’s must-carry provisions. It can be argued that social media companies are in the realm of the cable must-carry cases, he said. It’s time for Congress to close the gap between tech platforms’ corporate power and the lack of accountability, he argued. “Reform” for Communications Decency Act Section 230 is one “important piece,” he said, but it’s not sufficient. Big Tech also needs to provide more transparency, he said, voicing support for the Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard (Pro-Speech) Act (see 2106100070). The bill “pretty much nails it,” Carr said. Congress should also consider methods for banning pretextual content moderation and imposing affirmative, anti-discrimination obligations, he said. Trump’s legal complaints aren’t “frivolous,” said Free State Foundation President Randolph May. He noted Trump’s argument CDA Section 230 immunity “amounts to a delegation of authority by Congress that facilitates the companies’ censorship actions.” If correct, Big Tech companies can’t censor posts, May said, though he’s “not convinced at this point that Section 230’s grant of immunity, standing alone, is sufficient to make the Big Tech social media companies state actors.” It’s possible discovery “could uncover a trove of emails from various congressional officials urging the social media companies to take certain actions which the firms quickly took,” he added.
It will be a challenge for state attorneys general to prove Google has a monopoly over the Android app store market, former FTC and DOJ officials told us Thursday. Consumer groups welcomed Wednesday’s lawsuit from AGs in 36 states and Washington, D.C.