Policy & Law
27.06.2023

i2Coalition May 2023 Legislative Update

Your update on important Internet policy issues

OUTLOOK 

Debt limit negotiations between the White House and the Speaker of the House dominated the Washington, DC political environment in May. Over the U.S. Memorial Day holiday weekend, President Biden and Republican House Speaker Kevin McCarthy reached a legislative deal–called the Fiscal Responsibility Act (FRA) –to raise the U.S. debt limit until January 1, 2025, while also setting some limits on discretionary government spending. The President and Speaker portrayed the agreement as a meaningful political compromise that should attract enough bipartisan support to pass in the House and Senate. The FRA includes other key provisions that would: recoup nearly $30 billion in unspent COVID relief funds; redirect some funds originally intended for the Internal Revenue Service for tax enforcement and modernization; temporarily raise the maximum age for work requirements for food assistance program recipients while creating certain exemptions; adopt several energy and infrastructure permitting reforms; and expedite approval of a West Virginia natural gas pipeline project supported by West Virginia Senators Joe Manchin (D) and Shelley Moore Capito (R). After announcing the deal, President Biden and Speaker McCarthy pivoted quickly to mobilize support for the FRA so that the legislative deal could pass in Congress and be signed into law by the President in time to avoid an unprecedented, economically catastrophic default by the U.S. Without this action, Treasury Secretary Janet Yellen has predicted that the U.S. will default on its debt on June 5.

TECH POLICY PRIORITIES

Section 230/Intermediary Liability.  On May 18, the Supreme Court issued a decision in Gonzalez v. Google LLC, which allows existing Section 230 legal interpretations to stand unchanged.  The Court found it unnecessary to address the Section 230 arguments in Gonzalez in light of its analysis in a related decision the Court released the same day in the Twitter v. Taamneh case, in which the Court found that the plaintiffs failed to state a valid “aiding and abetting” cause of action against social media platforms under the anti-terrorism statute.  Several prominent members of Congress immediately reacted to the Court’s decisions by calling for Congress to redouble efforts to reform Section 230. Senator Lindsey Graham (R-SC) believes that Congress should pass legislation to “sunset” Section 230 within two years. Senator Michael Bennet (D-CO) re-introduced legislation to establish a five-member commission to regulate large social media platforms.

Federal Privacy. Bipartisan leaders of the House Energy and Commerce Committee continue to emphasize their plans to pass national consumer data privacy and protection legislation. In May, they sent letters to numerous data broker companies seeking information about their data gathering, retention, and disclosure practices. The Senate Commerce Committee may consider legislation focused on children’s online privacy and online safety. The U.S. Surgeon General issued an advisory on May 23 on the impact of social media on youth mental health.

Copyright/IP. The impact of AI on copyright law is a growing area of Congressional focus. The House Judiciary Committee  IP Subcommittee held a hearing on the subject on May 17 and plans more hearings in the future. The Copyright Office has continued to hold its series of AI listening sessions.

Antitrust/Competition. The U.S. Court of Appeals for the DC Circuit denied a petition from 48 states and territories to reinstate their antitrust complaint against Meta Platforms, Inc. (formerly Facebook). Senior Circuit Judge A. Raymond Randolph’s opinion urged courts to proceed cautiously in antitrust cases involving emerging technologies. The Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights held a May 3 hearing on competition in the digital advertising ecosystem.

Broadband.  On May 30, the FCC released an updated National Broadband Map. The House Energy and Commerce Subcommittee on Communications and Technology held an NTIA oversight and reauthorization hearing on May 23, during which a discussion of NTIA’s administration of federal broadband funding programs figured prominently. The NTIA has said it is on track to use the new FCC map to make state broadband, equity, access, and deployment (BEAD) program funding allocations by June 30.

ISSUES

Section 230/Intermediary Liability 

Supreme Court: Challenges to Section 230 Dismissed – In a major victory for the tech industry, on May 18, the Supreme Court dismissed two challenges to third-party liability protections under Section 230.

  • Both cases (Gonzalez v. Google LLC& Twitter, Inc. v. Taamneh) revolved around whether social media platforms bore liability for terrorism-related deaths. The plaintiffs argued that Google and Twitter, respectively, were culpable in specific terrorist acts because they algorithmically promoted ISIS recruitment and fundraising efforts. The plaintiffs claimed that Section 230 applied only to third-party content, not first-party recommendations. Rather than tackle 230 head-on, the Court tossed both cases for failing to establish a connection between the platforms and the acts in question. 
  • With the Court essentially punting on the issue, reactions swiftly poured in from Congress. House Energy and Commerce Committee Chairwoman Cathy McMorris Rodgers (R-WA) said the decision underscored the urgency for Congress to enact needed reforms to Section 230. Sen. Lindsey Graham (R-SC) called on the Senate to pass legislation he wrote with Sen. Sheldon Whitehouse (D-RI) to sunset 230 within two years. In addition, Rep. Jan Schakowsky (D-IL) is expected to reintroduce her Online Consumer Protection Act, which allows users to sue social media companies and online marketplaces that violate state or federal consumer protection laws, and exempts any such lawsuits from Section 230.

Senate: Bennet Reintroduces Digital Platform Commission Act – On May 18, Sens. Michael Bennet (D-CO) and Peter Welch (D-VT) announced the reintroduction of legislation to regulate Big Tech platforms.  The Digital Platform Commission Act of 2023 would establish a five-member commission to oversee algorithmic processes, content moderation, platform transparency and accessibility, data portability and interoperability, and age-appropriate design and age verification standards, among other issues. The bill would also allow the commission to designate systemically important digital platforms and promulgate rules specific to them. A section-by-section summary is available here.

i2Coalition’s Perspective – i2Coalition will continue its work to educate policymakers about the complexities of the Section 230 debate and threats posed to the entire Internet ecosystem beyond the largest tech social media platforms if uninformed legislation is adopted or legal cases are wrongly decided. In 2023, the i2Coalition joined with other prominent tech trade associations in a letter and related efforts directed to the Senate Judiciary Committee to oppose the ill-advised, re-introduced EARN IT Act. The i2Coalition continues to build on its collaboration with key allies in the library and higher education communities to promote a full understanding of the scope of Section 230. The i2Coalition filed an amicus brief with the U.S. Supreme Court in Gonzalez v. Google on Jan. 18, 2023, to advance the Court’s accurate understanding of the scope and impact of Section 230’s immunity protections for Internet intermediary providers. Similarly, in the 118th Congress, the i2Coalition will continue to inform and educate policymakers if misplaced enforcement and procedural approaches to other online problems are proposed (e.g., the DRUGs Act).

Privacy

House: E&C Bipartisan Leadership Demands Answers from Data Brokers on Privacy – House Energy and Commerce Republicans, led by Chair Cathy McMorris Rodgers (R-WA), and Democrats, led by Ranking Member Frank Pallone (D-NJ), sent letters on May 10 to nearly two dozen data brokers seeking information about the companies’ data collection, retention, and disclosure practices. Committee leadership said existing law did not adequately protect Americans’ privacy and reiterated their commitment to enacting a national data privacy standard. The letters were cosigned by Oversight and Investigations Subcommittee Chair Morgan Griffith (R-VA) and Ranking Member Kathy Castor (D-FL); Innovation, Data, and Commerce Subcommittee on Chair Gus Bilirakis (R-FL) and Ranking Member Jan Schakowsky (D-IL); Health Subcommittee Chair Brett Guthrie (R-KY) and Ranking Member Anna Eshoo (D-CA); Communications and Technology Subcommittee Chair Bob Latta (R-OH) and Ranking Member Doris Matsui (D-CA).

U.S. Surgeon General: Outline of Health Risks of Social Media Use by Youth – On May 23, the Office of the Surgeon General issued an advisory on the impact of social media on youth mental health. The report, titled Social Media and Youth Mental Health: The U.S. Surgeon General’s Advisory, calls attention to growing concerns and found many indicators of the profound risk of harm social media poses to the mental health and well-being of children and adolescents. Excessive and problematic use of social media can disrupt healthy behaviors, such as sleep and physical activity. The advisory recommends strengthening safety protections for children interacting with all social media platforms, conducting transparent and independent assessments of the impact of social media on children and adolescents, and supporting increased funding for future research on both the benefits and harms of social media use. The White House has created a new task force to study the issue.

House: NDO Fairness Act – On May 15, the House passed by a vote of 412-0 legislation aimed at stopping the misuse of gag orders in electronic searches. The NDO Fairness Act (H.R. 3089) would require federal investigators to notify the target of an electronic search about any information the government obtained—unless a judge is convinced disclosure would endanger lives or seriously jeopardize the investigation.

FTC: Proposed Ban on Meta’s Monetization of Under 18 User Data – The FTC is proposing significant changes to its 2020 privacy order with Meta Platforms, Inc. alleging the company has committed multiple violations. The proposed changes would ban Meta from monetizing the data of users who are under the age of 18. Other changes include a pause on new product launches without assessor confirmation; an extension of compliance requirements to merged companies; limits on the use of facial recognition technology; and strengthened requirements for privacy reviews, third-party monitoring, data inventory and access controls, and employee training. Meta has thirty days to respond.

Biden Admin.: OSTP Seeks Information on Automated Workplace Surveillance – The White House Office of Science and Technology Policy (OSTP) is seeking public comment on the use of automated surveillance and management. OSTP aims to explore opportunities for collaboration between federal agencies, employers, workers, and other stakeholders to ensure these systems do not compromise workers’ rights. Comments are due on June 15.

i2Coalition’s Perspective – i2Coalition works closely with U.S. policymakers to educate about and maximize understanding of the business impacts of privacy and data collection legislation and regulation affecting the technology sector in the U.S. and globally. On October 6, 2022, in Washington, and on December 6 in Brussels, the i2Coalition and eco hosted timely webinars on the status of the EU-US Data Privacy Framework, with panelists from government, industry, and civil society. The i2Coalition will continue to follow EU-US efforts on transatlantic data flows policy making and engage with the responsible U.S. Department of Commerce officials and staff and with our EU allies and partners. In the 118th Congress, we will continue to focus on presenting substantive updates and educational resources to Congress and federal policymakers about the work we are doing and the progress being made with ICANN and NTIA on the development of a sound, workable global access model for domain name registration data meeting the requirements of the GDPR and federal and state laws, and the needs of law enforcement agencies. In Congress and before the Biden Administration, we will continue to emphasize the need to combine enhanced privacy policies with the ability to deploy strong encryption, unencumbered by backdoors, as primary tools we leverage to keep people safe online.

Copyright/IP

Copyright Office: AI Listening Sessions – The U.S. Copyright Office held its third virtual listening session on generative artificial intelligence on May 17. This session examined the use and impact of AI on audiovisual works.  The second session was held May 2 and focused on the use and impact of AI on the visual arts.

Supreme Court: Copyright and Visual Art Fair Use Decision – The Supreme Court issued a 7-2 decision on May 18, narrowing the “fair use” rights of artists to build upon existing works to create something new.  The Court ruled that Andy Warhol was not entitled to draw on a prominent photographer’s portrait of the musician Prince for an image that his estate licensed to a magazine, limiting the scope of the “fair use” defense to copyright infringement involving visual art. Justice Sonia Sotomayor, who wrote for the majority, asserted that a crucial factor weighing in favor of the photographer was the purpose and character of the use, including whether the use was of a commercial nature or was for nonprofit educational purposes. Justice Kagan issued a strong dissent to the majority opinion and was joined by Chief Justice John Roberts Jr.

House: Judiciary IP Subcommittee Members Question PTAB Reform at USPTO Oversight Hearing – The House IP subcommittee held an oversight hearing of the U.S. Patent Trademark Office (USPTO) on April 27.  During the hearing, most Members focused on the agency’s recently released Advance Notice of Proposed Rulemaking (ANPRM), which outlines significant changes to the Patent Trial and Appeal Board (PTAB) process. Strong bipartisan concerns were expressed with the ANPRM, and there was general consensus the proposals outlined in the notice might exceed USPTO’s authority.

Supreme Court: Patent Decision Clarifies Enablement Requirement – On May 18, the Supreme Court issued a ruling in Amgen v. Sanofi clarifying the scope of the enablement requirement under patent law. According to the statute, anyone who wishes to claim a patent on an invention must explain how to produce and utilize that invention within their patent application. The idea is to enable persons “skilled in the art” to reproduce and make use of the invention once the patent expires.

  • In this case, Amgen claimed a patent on an entire class of cholesterol-lowering monoclonal antibodies that bind to a specific protein. The company said Sanofi infringed on this patent, while Sanofi argued that Amgen’s claim was invalid because it failed to provide enough information to enable others to produce every pharmaceutical within the class.
  • The Court decided unanimously in favor of Sanofi because Amgen’s patent described only 26 specific antibodies in detail. At the same time, the Court left open the possibility of other potentially expansive claims—so long as the patent application discloses a general quality that reliably enables a skilled artisan to make and use all of what is claimed, not merely a subset. Therefore, any determination about whether a specific patent meets the enablement requirement must be made on a case-by-case basis.

U.S. Solicitor General: Support for Caltech in Apple/Broadcom Patent Dispute – The U.S. Solicitor General Elizabeth Prelogar filed an amicus brief on May 23 asking the Supreme Court to deny review of a patent dispute between Apple, Broadcom, and the California Institute of Technology. The United States argued Apple could not challenge the validity of Caltech’s patents in court using arguments it knew or should have known about but did not include in its original petition for inter partes review before the U.S. Patent and Trademark Office. Caltech alleges the Broadcom-supplied Wi-Fi chips in Apple’s consumer devices violate three of the university’s data transmission patents. A federal jury awarded Caltech over $1.1 billion in damages for the breach in 2020. Apple and Broadcom are seeking to overturn the decision and have the Caltech patents revoked. Caltech has filed separate lawsuits against Microsoft Corp, Samsung Electronics Co, Dell Technologies Inc, and HP Inc for infringing the same patents. Those cases are pending.

i2Coalition’s Perspective – i2Coalition will continue to actively fight for the preservation of Section 512 safe harbors of the DMCA that its members have relied upon, including particularly the conduit provisions, to launch and operate their businesses successfully without being deluged with litigation threats. We will work to educate policymakers in Congress and the Biden administration to ensure balanced policy outcomes for our members. In addition, the i2Coalition will engage through outreach, dialog, and the public comments process in any future Canadian copyright consultations to urge continuity of balanced approaches in the consideration of any reforms of Canada’s safe harbor framework for online intermediaries.

Cybersecurity

Congress: Legislation Expanding CISA Authorities – Lawmakers in the House and Senate moved

a host of cybersecurity bills through committee in May that would expand Cybersecurity and Infrastructure Security Agency (CISA) authorities related to satellites and space, open-source software, and the cyber workforce.  

  • The Senate Homeland Security and Governmental Affairs Committee advanced legislation requiring CISA to draft voluntary cybersecurity recommendations for the space sector and maintain a clearinghouse of commercial public satellite systems.
  • The House Homeland Security Committee reported legislation directing CISA to develop a risk assessment framework for open-source software and to partner with open-source developers on securing their code.
  • Senators also approved a measure establishing a civilian cyber reserve pilot program within CISA, while their House counterparts forwarded a bill allowing CISA to train non-cyber Department of Homeland Security employees in cybersecurity roles.
  • Though each of these proposals enjoyed broad bipartisan support, some in the libertarian wing of the Republican Party have begun to express alarm about the number of authorities granted to CISA in recent years. These members, such as Sen. Rand Paul (R-KY), have cited concerns about the multiplicity of tools at CISA’s disposal should the agency become a regulatory body.

Biden Admin.: Digital Education to Feature in Cybersecurity Implementation Plan – According to Acting Cyber Director Kemba Walden in a May speech, digital education will feature heavily in the administration’s upcoming implementation plan for the National Cybersecurity Strategy. These educational efforts are intended to address four main areas: teaching all Americans basic cybersecurity skills, overhauling cyber education, growing the national cyber workforce, and expanding the federal cyber workforce. The implementation plan, expected to be released in June, generally aims to offload cybersecurity responsibilities from individuals and small businesses to larger entities with more resources.

Congress: King, Gallagher Urge Biden to Nominate Acting NCD to Permanent Position – The co-chairs of the Cyberspace Solarium Commission, Sen. Angus King (I-ME) and Rep. Mike Gallagher (R-WI) urged President Biden to nominate Kemba Walden for National Cyber Director in a May 11 letter.  Ms. Walden has occupied the position in an acting capacity since Director Chris Inglis retired in April. The lawmakers praised Inglis for developing the new National Cybersecurity Strategy but expressed concern that the three-month delay in nominating a successor could hinder the strategy’s implementation.

House: Garbarino, Swalwell Send Letter Seeking Clarity on SIE Program Office – Subcommittee on Cybersecurity and Infrastructure Protection Chairman Andrew Garbarino (R-NY) and Ranking Member Eric Swalwell (D-CA) sent an April 25 letter requesting further detail on plans to establish a new program office within the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) to identify “systemically important entities” (SIE) in each of the sixteen critical infrastructure sectors. CISA Director Jen Easterly said at a March 21 meeting of the Cybersecurity Advisory Committee that she hoped to work with designated sector risk management agencies to stand up the new office, reportedly by September. The letter seeks information about the office’s goals and structure as well as any efforts to coordinate its work with other CISA elements or sector risk managers.

Biden Admin:  New Tech Standards Strategy – The Biden Administration unveiled a National Standards Strategy for Critical and Emerging Technology in May aimed at protecting consumer technology and maintaining American competitiveness in international standards development. The document outlines four key objectives: (1) investment in pre-standardization research, (2) collaboration with industry and the research community on standards development, (3) education and training to grow the standards workforce, and (4) cooperation with allies to establish standards based on technical merit through fair processes that promote global participation and inclusive growth. It also reaffirms U.S. commitment to a rules-based and private sector-led approach complemented by strategic government and economic policies, public engagements, and investments. The strategy is likely intended to counter China’s state-led approach, which seeks to embed authoritarian values into international technical standards.

Senate: Know Your App Act – Sen. Tim Scott (R-SC) introduced a new bill that would require the disclosure of an app’s country of origin. The Know Your App Act would have the Commerce Department direct such requirements and allow the Justice Department to enforce them. “Americans should be able to make informed decisions about the online services they use in order to protect their data and security,” Scott said in a statement. “Parents shouldn’t fear that their family’s online privacy and security could be compromised when unknowingly using an app owned by a foreign adversary.” Scott’s co-sponsors are Sens. Wicker  (R-Miss.) and Lankford (R-Okla.), who made clear that concerns around TikTok are a major motivating force behind the bill. “We already see the ways the TikTok app is a dangerous extension of the [Chinese Communist Party] that is collecting every user’s personal data and all of their contacts,” Lankford said. “I want the ‘Made in China’ label and labels for any other countries where apps like TikTok originate to be clearly marked when and where they are downloaded.” The bill has no Democratic co-sponsors, which could spell roadblocks in the Democratic-led Senate.

Montana:  State Law Bans TikTok – Montana became the first state in the nation to ban TikTok outright after Gov. Greg Gianforte signed legislation prohibiting the Chinese-owned social app from operating there.  The law also prohibits mobile application stores from offering the app for download. Both TikTok (the company) and the app stores risk hefty fines—$10,000 per discrete violation per day—if they fail to comply. Gov. Gianforte said the law was necessary to protect Montanans from Chinese Communist Party surveillance. Within hours of enactment, Davis Wright Tremaine filed suit on behalf of five TikTok creators who allege the ban violates their First Amendment right to free expression. TikTok also filed a lawsuit.

China: U.S. and International Partners Issue Joint Advisory on PRC State-Sponsored Hacking – The United States and international cybersecurity authorities issued a May 24 joint cybersecurity advisory to warn about a recently discovered cluster of activity associated with a People’s Republic of China state-sponsored cyber threat actor, known as Volt Typhoon. This China-aligned group uses built-in network administration tools to perform their objectives, allowing them to evade detection by blending in with normal system and network activities. The advisory—authored by the National Security Agency, the Cybersecurity and Infrastructure Security Agency, the Federal Bureau of Investigation, the Australian Cyber Security Centre, the Canadian Centre for Cyber Security, the New Zealand National Cyber Security Centre, and the United Kingdom National Cyber Security Centre—provides examples of the actor’s commands along with detection signatures to aid network defenders.

i2Coalition’s Perspective – As policymaker concerns and efforts intensify around how to improve cybersecurity and guard against growing attacks and threats, the i2Coalition has increased its monitoring of this area. We will continue to engage in targeted policy matters and proceedings where the i2Coalition’s participation can enhance understanding and support improvements. In this regard, on March 3, 2023, the i2Coalition filed comments on NIST’s Cybersecurity Framework 2.0 Concept Paper. On November 14, 2022, the i2Coalition filed comments with CISA in response to the RFI on CIRCIA implementation.

Antitrust/Competition

FTC:  Biometrics, Health Data Policy – The Federal Trade Commission (FTC) voted on a policy statement on biometric information at its May 18 open meeting. The statement outlines practices the Commission intends to scrutinize for compliance with Section 5 of the FTC Act. In addition, commissioners have decided to issue a Notice of Proposed Rulemaking amending the Health Breach Notification Rule, which requires vendors to notify consumers whenever their unsecured identifiable health information is disclosed as part of a data breach. The amendments would clarify the technologies and entities subject to the rule and expand content requirements for breach notifications, among other changes.

FTC: Federal Judge Dismisses FTC Data Broker Case, Leaves Open Possibility of Refiling – On May 4, a federal district court judge in Idaho dismissed a Section 5 lawsuit brought by the FTC against Kochava, Inc., a major data broker. The FTC alleged Kochava’s data feeds allowed purchasers to identify and track the movements of specific mobile device users to and from sensitive locations, but Judge B. Lynn Winmill found insufficient evidence of consumer harm resulting from the sales. He agreed, however, with the FTC claim that invasions of privacy may constitute “substantial injury” under Section 5 in and of themselves. He also concurred that the alleged harms, if proven, were neither avoidable nor outweighed by any countervailing benefit. The FTC has thirty days to file an amended petition.

FTC:  Informal Hearing on Government and Business Impersonation Rule – The FTC held an informal hearing on its proposed rule banning government and business impersonation on May 4.  The proposed rule covers: (1) calls, text messages, or other communications that falsely purport to be from a government or business entity; (2) physical mail featuring fake/lookalike addresses, logos, seals, or symbols; (3) websites or online services featuring fake/lookalike URLs, logos, seals, or symbols; (4) spoofed email addresses; (5) fake digital ads placed against common search terms; and (6) unauthorized use of seals or business marks, whether online or offline.

CFPB, DOJ, EEOC, FTC:  Joint Statement on Automated Systems – The heads of the Consumer Financial Protection Bureau (CFPB), Department of Justice (DOJ) Civil Rights Division, Equal Employment Opportunity Commission (EEOC), and Federal Trade Commission (FTC) released a joint statement in April on enforcement efforts against discrimination and bias in automated systems. The statement reaffirmed legal prohibitions against discrimination applied to automated systems—including AI. All four agencies pledged to use existing authorities to enforce the law and protect individuals’ rights. “We already see how AI tools can turbocharge fraud and automate discrimination, and we won’t hesitate to use the full scope of our legal authorities to protect Americans from these threats,” said FTC Chairwoman Lina Khan. The agencies said they would monitor the data and datasets used to train AI, the transparency of and access to AI models, and the design and use of AI for outcomes that result in unlawful discrimination.

DC Appeals Court: Declines Meta Antitrust Case, Cautions Against Novel Litigation – On April 27, the U.S. Court of Appeals for the DC Circuit denied a petition from 48 states and territories to reinstate their antitrust complaint against Meta Platforms, Inc. (formerly Facebook). However, in an unexpected turn, Senior Circuit Judge A. Raymond Randolph’s opinion urged courts to proceed with caution in antitrust cases involving emerging technologies. “Many innovations may seem anti-competitive at first but turn out to be the opposite, and the market often corrects even those that are anti-competitive,” wrote Judge Randolph. The opinion is a major setback for FTC Chairwoman LinaKhan and DOJ Antitrust Division Chief Jonathan Kanter, each of whom has sought to advance theories of market intervention based on potential future threats to competition.

Ninth Circuit Court: Upholds Lower Court Ruling in Epic Games v. Apple – On April 24, the Ninth Circuit Court of Appeals upheld a lower court ruling in Epic Games v. Apple, finding mostly in favor of Apple. Epic claimed Apple’s ban on third-party app marketplaces was anti-competitive, but the Court disagreed the alleged App Store monopoly violated federal antitrust law. As in district court, Epic prevailed on its claim regarding outside payment services; the Ninth Circuit ruled Apple could not, under California state law, prohibit app makers from directing users to alternative payment platforms. Regardless, the decision is largely viewed as a victory for Apple.

i2Coalition’s Perspective – i2Coalition monitors but has not actively engaged on this issue.

Trade

European Parliament:  Questions Adequacy of EU-U.S. Privacy Framework in Non-Binding Vote – The European Parliament passed a non-binding resolution on May 11 that questioned the adequacy of the EU-US Data Privacy Framework and called on the European Commission to reopen negotiations with the United States. The resolution expressed concern over US surveillance laws and bulk data collection practices and faulted the new redress mechanism for failing to provide a sufficiently independent or impartial judicial review. It also highlighted the risk of disruption and additional costs to European businesses should the Commission’s adequacy decision be invalidated again by the European Court of Justice. Lawmakers urged the Commission to address its concerns, protect the rights of EU citizens, and ensure legal certainty for business.  

US – EU Trade & Technology Council  Meeting (Sweden May 30-31) – A high-level delegation of U.S. officials, including Secretary of State Anthony Blinken, Commerce Secretary Gina Raimondo, and USTR Ambassador Katherine Tai, are representing the U.S. at the 4th  US – EU Trade & Technology Council meeting in Sweden on May 30-31.  Topics to be discussed include regulation of artificial intelligence, 6G, China, and “green” subsidies in the U.S. Inflation Reduction Act.  The rapid development of AI, and the pressure it has put on lawmakers in Washington and Europe, was framed by a letter released by the Center for AI Safety, which said reducing the “existential risk” from the nascent tech needs to be a global priority on the same level as risk mitigation for “pandemics and nuclear war.” The letter’s high-profile signatories included the CEOs of OpenAI and Google’s DeepMind. As the letter went live, TTC officials convened to discuss a more coordinated approach to generative AI, building on the momentum of the Hiroshima AI process and the Biden administration’s own commitment to making international collaboration on AI a priority.

Commerce Dept.: Substantial Conclusion of IPEF Supply Chain Agreement – On May 27, the Department of Commerce announced the substantial conclusion of negotiations on the supply chain pillar of the Indo-Pacific Economic Framework. The proposed agreement between the United States and thirteen Indo-Pacific nations aims to make supply chains more resilient and competitive and establish a framework for cooperation on workforce development, supply chain monitoring, investment promotion, and crisis response. IPEF partners will now take steps to prepare a final text for signature.

i2Coalition’s Perspective – i2Coalition continues to work for balanced trade agreements that foster digital trade, and we generally support efforts to put trade with China on a more level footing. We support the global digital trade principles articulated in the global industry letter to the G20. We will continue our engagement with USTR in support of those principles and against non-tariff trade barriers. The i2Coalition will also continue our work with our EU-based members on the DSA, DMA, and the NIS2 Directive toward balanced and transparent regulations, including providing input on major relevant U.S. policy discussions having an impact on evolving global intermediary liability principles (e.g., the Section 230 debate in the U.S. Congress). The i2Coalition will continue to underscore and educate USTR officials in the Special 301 proceedings about the key point that USTR should not confuse “notorious markets” with neutral intermediaries such as Internet infrastructure providers. The i2Coalition’s efforts before USTR are succeeding, as demonstrated in the 2022 Review of Notorious Markets for Counterfeiting and Piracy report released on January 31, 2023, in which not one of our Internet intermediary members or any other traditional Internet infrastructure company was cited in the online markets list.

Tech

Biden Admin.: New AI Initiatives – The Biden Administration announced in May several new initiatives to promote responsible AI innovation and safeguard user rights.

  • The federal government plans to invest $140 million in seven new National AI Research Institutes while leading AI developers—including Anthropic, Google, Hugging Face, Microsoft, NVIDIA, OpenAI, and Stability AI—are committing to public evaluations of their models.
  • In addition, the Office of Management and Budget (OMB) is currently writing guidance on the development, procurement, and use of AI systems by federal agencies. OMB will release a draft for public comment in the summer.
  • The White House Office of Science and Technology Policy (OSTP) released an updated National Artificial Intelligence Research and Development Strategic Plan. The plan, revised for the first time since 2019, outlined key priorities and goals for federal investment. OSTP also issued a Request for Informationseeking input on national priorities for mitigating AI risks, protecting individual rights and safety, and harnessing AI to improve lives.
  • In addition, the U.S. Department of Education’s Office of Educational Technology has released a new report summarizing the risks and opportunities related to AI in teaching, learning, research, and assessment.
  • The White House, furthermore, hosted a listening session to hear firsthand experiences from workers regarding the use of automated surveillance, monitoring, evaluation, and management.

FTC: Chair Khan Op-Ed on AI Enforcement – In a May 3 op-ed published in the New York Times, FTC Chairwoman Lina Khan asserted Federal Trade Commission authority to regulate AI under existing competition and consumer protection laws. Khan outlined three major enforcement priorities with respect to AI. First, the Commission will examine how AI may facilitate monopolization, collusion, or targeted price discrimination in a manner that inflates prices overall. It intends to closely monitor dominant firms to ensure they do not abuse control over key inputs to exclude potential rivals. Second, the FTC is concerned scammers could use AI to turbocharge fraud—and plans to hold upstream providers accountable for enabling such deceit. Finally, the Commission is looking at how faulty or biased AI may automate unlawful discrimination against protected classes of people. Notably, Khan wrote nothing regarding next steps for Congress, evidencing her conviction that the FTC already possesses strong oversight mechanisms.

Industry: Microsoft Proposes AI Governance Model – Microsoft’s Vice Chair and President, Brad Smith, unveiled the company’s vision for AI governance during a recent live event streamed on LinkedIn. The five-point blueprint—detailed in this white paper, blog post, and one-page summary—includes the following elements:

  1. implementation and expansion of government-led AI safety frameworks
  2. redundant “safety brakes” for AI systems that control critical infrastructure
  3. development of a comprehensive legal and regulatory framework grounded in the technological architecture of AI
  4. promotion of transparency and assurance of academic and non-profit access to AI
  5. new public-private partnerships that utilize AI to address societal challenges

Senate: Calls for FTC Investigation into AI-Enabled Scams Targeting Seniors – Members of the Senate Special Committee on Aging wrote on May 18 to Federal Trade Commission (FTC) Chairwoman Lina Khan requesting information on the FTC’s efforts to protect older Americans from AI-related frauds and scams. The bipartisan letter, led by Committee Chair Bob Casey (D-PA) and Ranking Member Mike Braun (R-IN), highlights the increasing threat posed by AI-powered technology—including voice clones and chatbots—which can be used by scammers to create deceptive emails, phone calls, and images. The Committee requested information on recent developments in AI-related scams, their prevalence and accompanying risks, and steps the FTC is taking to protect older Americans. The FTC has been asked to respond by June 20.

Congress: Uptick in AI Hearings and Legislative Activities  – Congress lined up more hearings and became more vocal on artificial intelligence in late April and throughout May.

  • The CEO of OpenAI, Sam Altman, made his congressional debuton May 16 before the Senate Judiciary privacy subcommittee. OpenAI kicked off the AI arms race last fall with its groundbreaking ChatGPT tool. Democratic Caucus Vice Chair Ted Lieu (D-CA) and Republican Conference Vice Chair Mike Johnson (R-LA) also hosted OpenAI CEO Sam Altman in the Capitol on May 15 for a bipartisan, Member-only briefing on the future of artificial intelligence (AI). The Senate HSGAC examined AI applications for government. The House Judiciary’s IP subcommittee held the first in a series of hearings on the interaction between AI and copyright law.
  • Senate Intelligence Committee Chairman Mark Warner (D-VA) sent lettersrequesting the chief executives of several leading AI companies to prioritize security in the design and development of AI systems. Warner cited specific concerns about data supply chain, data poisoning, and adversarial attacks as well as bias, trustworthiness, and potential for misuse. He sought to understand what steps companies were taking to ensure AI security. The letter made clear, however, that some level of regulation was necessary in addition to industry commitments.
  • Michael Bennet (D-CO) introduced legislation aimed at aligning government use of AI with democratic values. The Assuring Safe, Secure, Ethical, and Stable Systems for AI (ASSESS AI) Actwould establish a task force to identify gaps in federal policy, regulation, or law with respect to AI and provide specific recommendations for closing them. Members of the task force would include cabinet-level officials, the directors of NIST and OSTP, and representatives from industry, academia, and non-profit organizations. A final report is mandated within 18 months of the task force’s establishment.

House: Democrats DeLauro, Fitzpatrick, Pascrell Introduce Outbound Investment Screen – Reps. Rosa DeLauro (D-CT), Brian Fitzpatrick (D-PA), and Bill Pascrell (D-NJ) reintroduced bipartisan legislation in May to prevent the offshoring of vital U.S. supply chains to foreign adversaries, such as Russia or China. The National Critical Capabilities Defense Act establishes an interagency committee to scrutinize outbound investments and advise the president on appropriate remedial actions. Such actions may include halting investments that pose a direct threat to U.S. national or economic security. Among other sectors, the legislation covers artificial intelligence, quantum computing, large-capacity batteries, critical minerals and materials, active pharmaceutical ingredients, and automobile manufacturing.

Chips & Supply Chain: United States, Canada, Mexico Cooperate on Nearshoring – The United States, Canada, and Mexico announced the creation of a joint committee to boost their chip supply chains at the inaugural North American Semiconductor Conference. The committee aims to boost economic competitiveness, promote investment, and develop a semiconductor workforce on the continent. Officials will also map semiconductor supply chains in North America to better understand each country’s role and strengths as well as potential areas for expansion. The committee is part of a broader effort to encourage cooperation among the three countries to strengthen their collective production abilities.

i2Coalition’s Perspective – i2Coalition monitors but has not actively engaged on this issue.

Telecommunications

FCC: Updated National Broadband Map Released – On May 30, the FCC released the updated National Broadband Map.  After the FCC’s May meeting, FCC Chair Jessica Rosenworcel told reporters that staff was conducting final data quality checks on the latest National Broadband Map ahead of the May 30 release. The FCC had released a pre-production draft of the map in November of last year, which lawmakers and advocates faulted for containing major errors and omissions. By law, NTIA must use the FCC map to allocate more than $42 billion of high-speed internet infrastructure funding under the Broadband Equity, Access, and Deployment Program.  In a blog post, FCC Chair Jessica Rosenworcel offered additional information about the update, and in its own blog post, the NTIA said it was on track to use the map to make allocations to the states in the $42.5 billion BEAD rural broadband funding program. According to the map, there are 8.3 million unserved locations nationwide. An FCC spokesperson confirmed that the 8.3 million number is based on the NTIA’s definition of “unserved.”

NTIA:  Releases ACCESS BROADBAND Reports and Dashboard – The National Telecommunications and Information Administration (NTIA) launched a new data dashboard and released two reports that detail federal investments in high-speed internet programs for FY 2021. The first outlines the activities of NTIA’s Office of Internet Connectivity and Growth, while the second provides an estimate of the number of households provided broadband through universal service programs or federal broadband support as well as an estimate of the economic impact of federal broadband deployment efforts. The dashboard, meanwhile, is intended to serve as a benchmark for federal internet investment from October 2020 to September 2021. Spending from the Bipartisan Infrastructure Law and other federal initiatives enacted after FY 2021 will be included in future dashboard updates.

Senate: FCC Universal Service Fund May 11 Hearing & Legislation Exploring Tech Company Contribution Requirements – The Senate Commerce Committee’s Communications, Media, and Broadband Subcommittee held a May 11 hearing on the future of the Universal Service Fund (USF). The USF was designed a quarter century ago to ensure access to telecommunications for low-income households, schools and libraries (E-Rate), rural communities, and telehealth services, but has come under increasing strain in recent years as its funding source diminishes. Most of the companies that pay into the Fund are traditional phone service providers, which represent a shrinking market.  Subcommittee Chairman Ben Ray Luján (D-NM) is a cosponsor of legislation, reintroduced by Sen. Roger Wicker (R-MS) in March, that would direct the Federal Communications Commission (FCC) to study the feasibility of collecting universal service contributions from edge providers.

Universal Service Fund:  Survives Another Legal Challenge in Appeals Court – On May 4, the 6th Circuit Court of Appeals dismissed a lawsuit brought by conservative non-profit Consumers’ Research challenging the constitutionality of the Universal Service Fund (USF). This marks the second ruling in favor of the USF, which provides telecommunications subsidies for low-income households, schools and libraries (E-Rate), rural communities, and telehealth services. The 5th Circuit tossed out a challenge from the same group in March. Consumers’ Research is currently seeking to have that case reheard before the full 5th Circuit and has filed a separate challenge in the 11th Circuit. The dispute is likely to end up before the Supreme Court.

House & Senate GOP: Cruz, Thune, Rodgers, Latta Request IG Review of FCC’s ACP – On May 8, Republican leaders on the Senate Commerce and House Energy and Commerce committees requested an independent evaluation of the Federal Communications Commission’s (FCC) Affordable Connectivity Program (ACP). In a letter to FCC Inspector General Sharon Diskin, Ranking Member Ted Cruz (R-TX) and Chairwoman Cathy McMorris Rodgers (R-WA) questioned whether ACP subsidies were effectively targeted at households that did not already have access to broadband Internet. The lawmakers also sought information about the development of specific goals and metrics for the program as well as preparation for potential lapses in funding. Communications, Media, and Broadband Subcommittee Ranking Member John Thune (R-SD) and Communications and Technology Subcommittee Chair Bob Latta (R-OH) cosigned the letter.

NTIA: Urges EU Against Requiring Edge Providers to Fund Network Expansion – In comments filed on behalf of the United States, the National Telecommunications and Information Administration (NTIA) urged European policymakers to think carefully before introducing network expansion funding mechanisms that could disrupt the internet ecosystem. The agency warned that imposing direct payments on edge providers absent assurances from ISPs on infrastructure spending could distort competition, raise costs for users, and potentially undermine net neutrality. NTIA filed the comments in response to a European Union consultation on the future of the electronic communications sector and its infrastructure.

FCC: Sensors and Mobile Spectrum, New Call Blocking Requirements – At its May meeting, the FCC approved changes that would allow unlicensed sensors, such as radars, to operate within the 60 GHz band. The proposal seeks to ensure these devices work alongside other technologies and federal users. Commissioners declined authorization for mobile operations in the 12.2 GHz band to preserve spectrum for current and future satellite services. As an alternative, the FCC is examining the 12.7 GHz band for mobile broadband and other use. Finally, commissioners expanded call-blocking requirements to better protect consumers from unwanted robocalls. This includes blocking based on analytics.

FCC: Tentative Agenda For June Open Meeting – The FCC announced the topics that commissioners plan to discuss at the open meeting on June 8. The FCC will consider a proposal to speed up the adoption of Next Generation 911 so that more emergency responders can accept text messages, images, and videos from the public. The FCC will also consider rules making it easier for consumers to give or revoke their consent to receive robocalls and robotexts. In addition, commissioners will explore models to enable shared use of the 42 GHz band.

Biden Admin.: Anna Gomez Nominated for FCC – On May 22, President Biden nominated Anna Gomez to fill the vacancy on the Federal Communications Commission (FCC).  Pres. Biden also announced that he was nominating two sitting Commissioners (Democrat – Starks and Republican – Carr)  for additional terms.  Anna Gomez currently serves as the Deputy Administrator of the National Telecommunications and Information Administration (NTIA). If confirmed, she would break the FCC’s 2-2 partisan deadlock, which has persisted for over two years. Biden’s previous nominee, Gigi Sohn, withdrew from consideration in March—after more than a year and a half waiting for a confirmation vote.

i2Coalition’s Perspective – i2Coalition monitors but has not actively engaged on this issue.

Economy/Energy/Environment

Biden Admin: Guidance on Domestic Content for Clean Energy Tax Credits – On May 12, the Biden Administration unveiled its latest guidance on tax incentives under the Inflation Reduction Act. The guidance offers details about how companies that use domestically produced steel, iron, and manufactured products can earn additional clean energy tax credits. Energy Secretary Jennifer Granholm called the provision “yet another example” of the administration’s commitment to U.S. manufacturing and national security. Labor, environment, and clean energy groups had been waiting to see how far back in the supply chain the domestic content requirements would apply.

Supreme Court: Limits Scope of Clean Water Regulations – The Supreme Court has dramatically scaled back the Environmental Protection Agency’s (EPA) authority to regulate wetlands under the Clean Water Act. In a 5-4 decision issued on May 25, the Court held that the Act’s use of the term “waters” referred only to geographical features described in ordinary parlance as “streams, oceans, rivers, and lakes” and to adjacent wetlands “indistinguishable” from those bodies due to a continuous surface connection. Environmental activists say the decision removes almost 90 million acres of formerly protected wetland from EPA jurisdiction.

EPA:  Proposed New Rule on Power Plant Emissions – On May 11, the Environmental Protection Agency (EPA) proposed new regulations to slash greenhouse gas emissions at the nation’s power plants. The rule seeks to reduce emissions via the application of advanced technologies, such as carbon capture and hydrogen blending. However, it may exempt hundreds of the dirtiest plants – those that are only used during peak energy periods –  in a bid to head off potential legal challenges, reducing benefits for low-income communities most affected by pollution. Opponents are likely to fight the proposed rules in Congress and in court.  The power plant rule is viewed as critical to fulfilling President Biden’s goal of cutting carbon emissions in half by 2030.

House: SEEC Task Force Releases Draft Permitting Reform Legislation – In late April, the Co-Chairs of the House Sustainable Energy and Environment Coalition (SEEC) Clean Energy Deployment Task Force—Reps. Sean Casten (D-IL) and Mike Levin (D-CA)—released a discussion draft of the Clean Electricity and Transmission Acceleration (CETA) Act. This bill aims to holistically address bottlenecks in clean energy and electricity transmission deployments while ensuring communities have an opportunity to voice their concerns throughout the permitting process. Casten and Levin are soliciting feedback on potential improvements before formally introducing the bill in the House. A section-by-section breakdown is available here.

Senate: EPW Hearing Highlights Clean Energy Deployment Challenges – At an April 26 Senate Environment and Public Works hearing, members discussed bottlenecks to clean energy deployment, including the National Environmental Policy Act (NEPA) permitting process. In addition to NEPA, the committee cited the lack of consistent processes across the federal, state, and local levels as a major challenge. There was bipartisan agreement that community engagement early in the process helped projects move forward more quickly. Democrats talked about the lack of resources, staffing, and expertise across the board—themes that have also emerged as barriers to broadband deployment. EPW Chairman Tom Carper (D-DE) and Ranking Member Shelley Moore Capito (R-WV) have committed to working together on potential bipartisan legislation, a sign that permitting reform on the energy infrastructure side is gaining momentum.

Debt Limit Deal:  Impact on Comprehensive Permitting Reform – The bipartisan U.S. debt deal’s provisions to speed up energy infrastructure permitting will make it easier to build fossil fuel and clean energy projects but failed to tackle comprehensive reform, including the mammoth issue of building transmission and pipelines needed to get their production to consumers. The Biden administration said the deal, announced over the weekend, would, for the first time in years, update the National Energy Policy Act, the decades-old law that guides the environmental permitting of major projects, to ensure its impact studies do not exceed two years. Energy lobbyists consider the deal a good first step toward reforming energy permitting. House Speaker Kevin McCarthy has said that Republicans will continue to work with Democrats to pursue broader permitting reform – including pipelines and transmission.

i2Coalition’s Perspective – i2Coalition monitors but has not actively engaged on this issue.

COVID-19 Update

Vaccination Statistics – According to the CDC, as of May 11, 69.5% of the total U.S. population has completed a primary series of vaccination, and 81.4% has had at least one dose of vaccine. An updated (bivalent) booster dose has been received by 20.5% of people aged 18+ and 43.3% of people aged 65+.

i2Coalition’s Perspective – i2Coalition monitors but has not actively engaged on this issue.

RELEVANT HEARINGS & EVENTS TRACKED BY i2COALITION IN MAY/JUNE

May 3

May 4 

May 10

May 11

May 16

May 17

May 23

May 24

May 31

June 1

 

i2Coalition January 2023 Legislative Update

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