Draft legislation from Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., and Sen. Richard Blumenthal, D-Conn., would require tech companies to earn liability protection against civil lawsuits involving child sex abuse material, said a committee aide. Graham and Blumenthal have been negotiating legislation that would force companies to follow best business practices to earn certain liability protections under Section 230 of the Communications Decency Act (see 1910210067). As drafted, the bill could open up violators to civil lawsuits from victims of child sex abuse material hosted on platforms. Asked Thursday if a website that hosts child pornography should be subject to civil action, Graham told us, “That’s what 230 is all about. The thrust of the bill is that to get liability protections, you’ve got to earn them, you’ve got to do best business practices.” Blumenthal declined comment on bill specifics.
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
Senate Majority Whip John Thune, R-S.D., and Sen. Brian Schatz, D-Hawaii, are trying to formulate a proposal on the tech industry’s content liability shield, they told us Wednesday. Schatz previously announced plans to roll out legislation on Section 230 of the Communications Decency Act (see 1909120058).
DOJ Assistant Attorney General Makan Delrahim drew attention Monday to Attorney General William Barr’s recent questioning whether the tech industry’s content liability immunity is working as intended. Speaking at the Hudson Institute, Delrahim referenced Barr’s comments questioning application of Section 230 of the Communications Decency Act (see 1912110063).
House Democrats plan soon to release a draft privacy bill that tables areas of disagreement with Republicans like federal pre-emption and a private right of action, House Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill., told us. They have “solid agreement” with Republicans on several issues, Schakowsky said. “Some things will be bracketed that clearly aren’t agreed to, and hopefully a few parts that are not bracketed that are more likely to be agreed to.”
The FTC should continue presuming viewers of youth-directed online content are children, despite efforts from YouTube and the tech industry seeking carve-outs for adults watching it. It’s a central issue in the agency’s review of the Children’s Online Privacy Protection Act rule (see 1912090061), based on comments in docket 2019-0054 collected through Thursday.
Senate Republicans are eager to pass the U.S.-Mexico-Canada Agreement, despite reservations about including language shielding the tech industry from content liability. House Speaker Nancy Pelosi, D-Calif., announced an agreement with the White House on USMCA Tuesday (see 1912100012). Senate Majority Leader Mitch McConnell, R-Ky., said that chamber will consider the trade pact in 2020 (see 1912100015).
The Copyright Office is 95 percent complete with GAO 2015 IT modernization recommendations, Librarian of Congress Carla Hayden told the Senate Intellectual Property Subcommittee Tuesday. Copyright Office Director Karyn Temple, who leaves the CO after eight years for the Motion Picture Association (see personals section, Dec. 10), didn’t testify. Hayden detailed IT initiatives as the CO looks to reach 100 percent “very soon.” The online recordation system will allow users to record information on copyright ownership using a digital platform. The office is launching a new public records system to allow the public to search all copyright records. She said a limited recording pilot is expected in spring 2020, a proof of concept for the public records system in late 2020 and a next-generation registration system is expected to be in “full-scale” development later that year. Congress’ initial investment in copyright modernization was about $12 million for five years, and the CO is entering year two. Monday, Chairman Thom Tillis, R-N.C., and ranking member Chris Coons, D-Del., issued a CO modernization bill draft based on subcommittee roundtables (see 1907300069). Key conclusions from the roundtables, Tillis said, are the need for improved communication and transparency for those who use the copyright system daily. It’s essential there isn’t another prolonged period without a Register of Copyrights, he added. The office is working to reduce registration pendency times, modernize IT systems and implement the Music Modernization Act, he noted. CO acting Chief Financial Officer Jody Harry testified it could staff up quickly to implement the Copyright Alternative in Small-Claims Enforcement Act, if passed (see 1910250047), and associated IT needs are “minimal.” Tillis asked about the pros and cons of potentially updating Title 17, through the legislation, to make the CO statutory and essentially align it with the Congressional Research Service at the Patent and Trademark Office. CO centralization and management is analogous to CRS independence and autonomy, Hayden said. Having the ability to interact directly with Congress is a benefit, she said.
Apple and Google need to voluntarily provide better device access, or Congress will force them to alter encryption standards and accommodate lawful police searches, Senate Judiciary Committee members from both parties said Tuesday. The panel and representatives from Apple and Facebook debated end-to-encryption during a Tuesday hearing, at which law enforcement slammed Apple’s decision in 2014 to engineer devices in a way that effectively blocks police access.
Rep. Suzan DelBene, D-Wash., urged support for her privacy legislation, which she said would allow state attorneys general to obtain injunctive relief. During an interview with The Communicators, online Friday and to have been televised on C-SPAN over the weekend, she repeatedly cited her Information Transparency and Personal Data Control Act (HR-2013) (see 1903040054). Asked about including a private right of action, a sticking point in the privacy legislation debate, DelBene cited the need for strong enforcement from the FTC and state attorneys general. EU’s general data protection regulation and states moving forward with their own laws are major reasons for the U.S. to pass federal privacy legislation, she said: Without a federal law, the U.S. isn’t at the international table setting the standard. On slow progress in passing privacy legislation, she said it’s a complicated issue that not everyone is comfortable discussing. It would be “wonderful” to move faster, but Congress is making progress, she said. Congress can protect both consumers and innovation, but consumers need clarity on how data is collected, shared and used, she argued. The FTC needs authority to make privacy rules and inflict penalties through enforcement that has teeth, said DelBene. On antitrust, the tech industry isn’t in a unique position and is subject to competition law like any other sector, she said.
The FTC “effectively removed” Facebook’s independent privacy assessor (see 1912050065), Chairman Joe Simons wrote recently in a congressional letter. We obtained the document in response to a Freedom of Information Act request. Senators reached Thursday were skeptical that the FTC's $5 billion settlement resulted in meaningful structural change at Facebook.