House Commerce Committee Chairman Frank Pallone, D-N.J., hoped the COVID-19 aid package Democrats are aiming to pass via budget reconciliation includes additional E-rate funding. Pallone emphasized during an Incompas event the committee’s part of the pandemic bill, which it intends to mark up Thursday, is unlikely to address other telecom matters. More broadband money is almost certain to make it into additional economic aid measures and an infrastructure bill targeted for later this year, Pallone said.
Section 230
Sen. Ed Markey, D-Mass., and others cited the 25th anniversary Monday of the Telecom Act’s signing as a jumping-off point for a range of communications and tech policy proposals for this year, including the need for more broadband funding in coming legislation. Some noted the importance of the ongoing debate over revamping Communications Decency Act Section 230, enacted as part of the 1996 law.
Three Senate Democrats introduced expected legislation Friday (see 2102030060) to weaken Communications Decency Act Section 230 immunity, so victims of discrimination, harassment, cyber-stalking and other behavior could sue online platforms. Introduced by Mark Warner, Va.; Mazie Hirono, Hawaii; and Amy Klobuchar, Minn.; the Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms (Safe Tech) Act would let consumers seek court orders “where misuse of a provider’s services is likely to cause irreparable harm” and hold platforms “accountable when they directly enable harmful activity.” Users could sue platforms when they directly contribute to loss of life. “Section 230 has provided a ‘Get Out of Jail Free’ card to the largest platform companies even as their sites are used by scam artists, harassers and violent extremists,” said Warner. The bill will hold platforms “accountable for harmful, often criminal behavior enabled by their platforms to which they have turned a blind eye for too long.” Sen. Ron Wyden, D-Ore., opposed the bill, saying it would effectively repeal the law he co-authored: “Creating liability for all commercial relationships would cause web hosts, cloud storage providers and even paid email services to purge their networks of any controversial speech.” The U.S. Chamber of Commerce urged Congress to be “mindful of the impact of changes in our antitrust laws and to focus on ensuring federal antitrust agencies have the resources to do their job consistent with the law.” Changing merger review legal standards, relying on fines over remedies and expanding private litigation “will not make America’s economy more vibrant and will have far-reaching implications impacting virtually every sector of our economy,” said Executive Vice President Neil Bradley.
Sens. Mark Warner, D-Va., and Mazie Hirono, D-Hawaii, plan to introduce legislation targeting Section 230 immunity, online housing discrimination and civil rights, they told us Tuesday (see 2101260066). “There are certain provisions, certain areas that we think that [online platforms] should not have immunity,” Hirono said, citing housing discrimination and civil rights. “This particular iteration has the support of a lot of groups because there’s concern, of course, on both sides, left and right.” There’s “a lot of interest” in making changes to Section 230 immunity, she added.
Senate Communications Subcommittee lead Democrat Brian Schatz of Hawaii confirmed to us he’s “probably” going to give up an opportunity to chair the subpanel in this Congress to retain other leadership roles, as expected (see 2101190001). That makes it all but certain that Sen. Ed Markey, D-Mass., will take over the Communications gavel, lawmakers and lobbyists said. Democrats will have to wait to formally take control of Senate Communications and other panels until leaders finalize a power-sharing agreement to handle the 50-50 chamber.
Rep. Yvette Clarke, D-N.Y., requested comment by Feb. 5 on a discussion draft of a bill to amend Communications Decency Act Section 230 to ensure “civil rights laws apply” to advertisement targeting. Ad targeting limits user visibility of ads based on personal data like gender, race, hobbies, interests and location, Clarke said Thursday: It perpetuates inequities. Communications Subcommittee Chairman Mike Doyle, D-Pa., said, “We know all too well how marketing efforts have been targeted to exclude marginalized groups.”
Sen. Mazie Hirono, D-Hawaii, is circulating online content-related legislation for potentially addressing civil rights violations in housing markets, Fordham University law professor Olivier Sylvain said Tuesday at the State of the Net conference. Hirono has been in discussions with Virginia Democratic Sens. Mark Warner and Tim Kaine about Communications Decency Act Section 230 (see 1908060064). Her office didn’t comment about a potential bill.
Trade groups representing intellectual property rightsholders told the Patent and Trademark Office that secondary trademark infringement liability hasn't been effective in getting e-commerce platforms to police themselves. Some want Congress to define the parameters of this doctrine by passing a law. Comments were due Monday. The Computer and Communications Industry Association said shifting responsibility to platforms would reduce voluntary cooperation and wouldn't decrease the number of counterfeits for sale. The American Apparel and Footwear Association said the test of platform liability, that a company should “know or have reason to know” of trademark infringement, seems straightforward, but courts have applied it differently. “The court in Tiffany v. eBay believed that market-based forces would provide a strong incentive for platforms to combat counterfeits. Empirically, it is irrefutable that this assumption is false," said AAFA. The Shop Safe Act (HR-6058) from the last session of Congress would have created a new form of secondary liability for counterfeits, and AAFA said it needs a clearer definition and its coverage should be expanded. The National Association of Manufacturers said legislation is needed to set “judicial review standards that encourage courts to develop critical fact-specific case law.” NAM said some courts say Communications Decency Act Section 230 protections for platforms give them a safe harbor to host sellers of bogus goods, and that wasn't what Congress intended. Amazon noted that in 2019 it invested more than a half-billion dollars to fight counterfeits and other fraud and abuse on its site. “Amazon’s primary focus is on preventative, technology-driven tools built on machine learning and data science to proactively scan the more than 5 billion changes submitted to Amazon’s worldwide catalog" daily, it commented. “For every one of the self-service takedowns by brands, Amazon’s automated protections proactively stop more than 100 listings.” It said it launched a Counterfeit Crimes Unit in June 2020: "Amazon needs the help of rights holders, the company said, and information sharing, from both [Customs and Border Protection] on seizures and from other platforms, would help the company stop counterfeiters."
The Commerce Department and NTIA during President Joe Biden’s administration will strive to end interagency spectrum infighting that became endemic in recent years, Commerce Secretary nominee Gina Raimondo told the Senate Commerce Committee Tuesday. She said during her confirmation hearing NTIA should play a role in other matters, including broadband funding.
Ajit Pai, who leaves the FCC Wednesday, had one of the busiest conclusions to a chairmanship in recent history as he closed out many items. That was deliberate, Pai said in an interview. We’re “sprinting to the finish," he said Friday evening. Pai said all the big things he wanted to do he started in his first three years. “We didn’t want to leave significant items lingering out there for the last year,” he said: “Things can fall through the cracks before you know it.”