Karl Herchenroeder

Senate Intellectual Property Subcommittee Chairman Thom Tillis, R-N.C., will release a discussion draft Friday for updating the Digital Millennium Copyright Act (see 2010050061), he said at a hearing Tuesday. It will have “revolutionary” concepts for preventing online piracy and protecting individual users, he said.

Republican senators are watching closely to see how the FTC and state enforcers apply antitrust standards to digital platforms in lawsuits against Facebook (see 2012090062). Some senators offered skepticism in interviews about a potential Facebook breakup and the forced sale of WhatsApp and Instagram, as requested by the FTC. The agency is in a far different position than when it allowed the Instagram and WhatsApp deals, legal experts told us, while drawing comparisons to the Microsoft case in the 1990s.

Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., withdrew his Section 230 legislation at Thursday’s markup, setting his sights on updating the tech industry’s liability shield in 2021. An amendment from Sen. Josh Hawley, R-Mo., which would establish a private right of action for individuals to sue platforms, failed 5-16 with support from one Democrat, Sen. Sheldon Whitehouse of Rhode Island.

Senate Commerce Committee Chairman Roger Wicker, R-Miss., is open to a U.S.-EU technology council effort to address the Privacy Shield and other tech issues, he told us Wednesday: “I am open to suggestions to a very tough, tough problem that may defy a solution.”

Sens. Amy Klobuchar, D-Minn., and Chuck Grassley, R-Iowa, are trying to get a bill to increase antitrust enforcer funding added to the Senate Appropriations Committee’s funding bill for FY 2021, Klobuchar told us. The Merger Filing Fee Modernization Act would update those fees for the first time since 2001. When Grassley and Klobuchar introduced the bill in June 2019, they said the fee for a “$900 million deal should not be the same as the fee for a $60 billion deal.”

If Communications Decency Act Section 230 is revised with more regulatory burden, it will entrench incumbents and result in more government involvement in communication channels, Parler Chief Policy Officer Amy Peikoff told C-SPAN's The Communicators, scheduled to have been telecast over the weekend. She dismissed concerns about hate speech and hate groups proliferating on Parler, saying the tech industry’s liability shield is working as intended. Her comments followed a Simon Wiesenthal Center report claiming the platform is attracting online extremists and harmful content.

Congress should “do away” with Communications Decency Act Section 230 but not through the FY 2021 National Defense Authorization Act, Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., told reporters Wednesday. He said negotiators won’t include Section 230 language in the final bill, despite a veto threat from President Donald Trump (see 2012010064). Section 230 “has nothing to do with the military, and I agree with his sentiments we ought to do away with 230, but you can’t do it in this bill,” Inhofe said, citing it as a nonstarter for Democrats.

The Supreme Court discussed what constitutes a computer crime, in a case concerning a former police officer who allegedly accepted a bribe to access license plate information. Nathan Van Buren is appealing a 2017 conviction on violations of the Computer Fraud and Abuse Act. SCOTUS received briefs from groups concerned about Van Buren’s interpretation of the law and what it could mean for privacy, said Justice Samuel Alito during Monday’s oral argument in Van Buren v. U.S. Government employees and citizens could potentially access highly personal information to make money, break the law or harass people if Van Buren prevails, groups said. In response to a question from Alito, Van Buren’s attorney Jeffrey Fisher said Congress wasn’t concerned about that when passing CFAA, only computer hacking, though lawmakers may want to regulate or criminalize the activity Alito described. The statute is designed to cover “serious breaches of trust,” like looking up personal information without authorization, said Deputy Solicitor General Eric Feigin. Before the court is whether a person authorized to access information on a computer for certain purposes violates CFAA if that user accesses “the same information for an improper purpose.” Justice Clarence Thomas questioned the distinctions Fisher tried to make. Thomas used the example of a car rental employee using GPS information to track a spouse rather than a vehicle, asking whether that would be a violation. The car rental employee is entitled to the GPS information, though there may be a breach of company policy, said Fisher: The question is whether the user is entitled to obtain the information. Justice Elena Kagan said a key question is what “so” means in the statute, referencing its definition of “exceeds authorized access,” which refers to information the “accesser is not entitled so to obtain or alter.” Fisher says it means “by accessing a computer,” she said, while Feigin said it means “by using your access.” Fisher has a point, Kagan said: “He is saying that what that prevents is using the statutes as to cases where you could obtain the information in a nondigital manner.”

Expect the FCC to allow its Communications Decency Act Section 230 rulemaking proceeding to stagnate through the transition to President-elect Joe Biden's administration, experts said in interviews. It would be unwise to move forward without a clear majority and could create unnecessary work for staff, they said.

Democrats defended the record of Sen. Dianne Feinstein, D-Calif., this week, after she announced she’s stepping down as top Democrat on the Senate Judiciary Committee (see personals section, Nov. 25). Dick Durbin, Illinois, who's next in line, said he will seek the position while remaining minority whip. Sheldon Whitehouse of Rhode Island, who ranks behind Durbin, said he’s looking forward to a caucus decision.