i2Coalition October 2023 Legislative Update

OUTLOOK

On Oct. 25, Republicans in the U.S. House unanimously elected Rep. Mike Johnson (R-LA) to be the next Speaker following 22 days of intra-party conflict, several failed nominees, and uncertainty during which no House legislative business could proceed. A small group of conservative Republican members dissatisfied with the leadership and policy decisions of former Speaker Kevin McCarthy (R-CA) instigated his abrupt removal using a special voting rule procedure. Until now, Speaker Johnson, first elected to Congress in 2016, did not have a strong national profile and was generally seen as a conservative lawmaker and supporter of former President Trump. With Speaker Johnson in place, both the House and Senate can resume work on urgent legislative priorities, including advancing the FY 2024 appropriations bills. The House and Senate will need to pass a continuing resolution (CR) to keep the federal government open past Nov. 17, when the current stopgap funding expires, because there is not enough time to complete work on all of the FY 2024 appropriations bills. Speaker Johnson has said he wants to extend the CR to either January or April 2024. The House and Senate are also trying to resolve their differences regarding an emergency funding package to provide aid supporting Israel, Ukraine, and Taiwan and U.S.-Mexico border security. Prospects are unclear for Congressional passage of the Biden administration’s requested $56 billion in domestic supplemental funding, which includes natural disasters, broadband, and child care programs.

TECH POLICY PRIORITIES

Section 230/Intermediary Liability/Content Moderation. The Supreme Court agreed to review a Fifth Circuit federal court of appeals decision in a lawsuit filed by Missouri and Louisiana which limited the Biden Administration’s efforts to curtail controversial social media posts regarding content addressing COVID-19 and election security. The state complainants argue that the Biden administration’s actions violate the First Amendment and unjustly suppress conservative viewpoints.

Federal Privacy. A House Energy and Commerce subcommittee held an Oct. 18 hearing on artificial intelligence and privacy, during which the need to pass federal comprehensive consumer data privacy and security legislation was extensively discussed. The Senate children’s online privacy and safety bills approved by the Senate Commerce Committee have not yet advanced for a Senate floor vote. California enacted a new law set to take effect in 2025 to punish social media platforms that facilitate commercial sexual exploitation of children as defined in the statute.

Copyright/IP. A bipartisan group of Senators led by Sen. Chris Coons (D-DE) has proposed legislation, the No Fakes Act, to protect entertainers from unauthorized AI-generated replicas. The U.S. Copyright Office is expected to release a report on AI next year after reviewing thousands of comments filed in response to its 2023 AI Notice of Inquiry.

Antitrust/Competition. The Senate Commerce Committee approved the pending FTC Commissioner nominations, which await a floor vote. The FTC and DOJ continue to hold public workshops on the 2023 draft merger guidelines.

Broadband. On Oct. 19, the Federal Communications Commission voted 3-2 to start an Open Internet (net neutrality) rulemaking. Numerous Republican leaders in the House and Senate issued statements in opposition to the FCC’s rulemaking, arguing, among other things, that it is unnecessary and unlawful. Comments in the proceeding are due on Dec. 14, 2023, and reply comments are due on Jan. 17, 2024. The Biden Administration requested $6 billion from Congress to continue the Affordable Connectivity Program, an Internet subsidy program that helps more than 21 million low-income households pay for their monthly broadband bills. Congress has not yet completed the reauthorization of the FCC spectrum auction authority, which lapsed in March 2023.

ISSUES

Section 230/Intermediary Liability/Content Moderation

SCOTUS to Hear Multiple First Amendment Social Media Cases – The Supreme Court currently has multiple social media-related cases involving the First Amendment on its docket for this term. On Sept. 29, the Supreme Court announced its agreement to decide whether laws passed in Texas and Florida can constitutionally restrict social media companies from removing certain political posts or accounts. On Oct. 20, the Supreme Court blocked a lower court order that limited the Biden administration’s efforts to curtail controversial social media posts regarding COVID-19 and election security. The Court announced it would hear arguments in that lawsuit which was filed by Louisiana, Missouri, and others, claiming that the Biden administration violated the Constitution by suppressing conservative views. The lawsuit targeted White House communications staffers, the surgeon general, the FBI, and the U.S. cybersecurity agency.

Meta MultiState Litigation – Dozens of US states, including California and New York, are suing Meta Platforms Inc. for harming young people and contributing to the youth mental health crisis by knowingly and deliberately designing features on Instagram and Facebook that addict children to its platforms. A lawsuit filed by 33 states in federal court in California claims that Meta routinely collects data on children under 13 without their parents’ consent in violation of federal law. In addition, nine attorneys general are filing lawsuits in their respective states, bringing the total number of states taking action to 41 and Washington, D.C. The suits seek financial damages and restitution and an end to Meta’s practices that are in violation of the law.

California Governor Signs New CSAM Legislation into Law – California Governor Gavin Newsom signed AB 1394 into law. The legislation would punish social media platforms for “knowingly facilitating, aiding, or abetting the commercial sexual exploitation” of children. The bill was introduced in response to recent complaints that Facebook was slow to respond to complaints regarding child abuse on its platform. The new law is set to take effect on January 1, 2025.

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 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 Subcommittee AI and Privacy Hearing – On Oct. 18, the House Energy and Commerce Subcommittee on Innovation, Data, and Commerce held a hearing on AI and privacy. The need to pass federal comprehensive consumer data privacy and security legislation, updated to encompass AI aspects, was highlighted extensively during the hearing. The Chair of the full Committee, Cathy McMorris Rodgers (R-WA), actively participated in the hearing and observed that AI has numerous potential benefits, including more affordable energy, better healthcare, a more productive workforce, and improved living standards. She warned that AI can also be abused, leading to serious concerns and challenges. To address these challenges, Chair McMorris Rodgers asserted that America must lead the development and deployment of AI rather than China and that establishing a national data privacy standard is crucial for protecting people’s information and ensuring a safe future.

FTC: Amended Safeguards Rule for Non-Banking Institutions – The FTC has approved an amendment to the Safeguards Rule that requires non-banking financial institutions to report data breaches and security events to the agency. Institutions must develop and maintain a security program to protect customer information. The amendment now requires notification to the FTC within 30 days of discovering a security breach involving at least 500 consumers. The new requirement will take effect 180 days after publication in the Federal Register.

Financial Privacy: CFPB Proposes Rule to Address Consumer Financial Data – The Consumer Financial Protection Bureau has proposed a rule to promote open banking, allowing consumers to share financial data with other companies for better products and services. The rule aims to increase competition, protect consumer interests, and prevent misuse of personal data. It includes provisions for free access to data, the legal right to share and revoke access, and fair industry standards. The requirements would be implemented in phases, with larger providers subject to them first.

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 Oct. 6, 2022, in Washington, and on Dec. 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

Senate: No Fakes Act Circulated to Protect Entertainers from AI – A bipartisan group of Senators led by Sen. Chris Coons (D-DE) has released a discussion draft of the No Fakes Act to protect entertainers from unauthorized AI-generated replicas. The draft legislation aims to balance an individual’s right of publicity, First Amendment, and AI innovation while holding individuals, companies, and platforms accountable for the manufacture and online distribution of such content. 

U.S. Copyright Office’s AI Regulation To be Released Next Year – According to reports, the US Copyright Office’s report on AI will not be released this year. The report will contain recommendations for legislative and regulatory changes related to generative AI. The Copyright Office regulates AI-related issues, including protecting human creators. The U.S. Copyright Office extended the deadline to submit comments in response to its August 30, 2023, notice of inquiry regarding artificial intelligence and copyright to ensure that members of the public have sufficient time to prepare fulsome responses to the Office’s questions so the Office can proceed with its inquiry with the benefit of a complete record of public input and feedback. The new due date for Initial written comments was set for October 30, 2023, and the new reply comments due date is November 29, 2023.

PTO Oct. 3 Roundtable on Anticounterfeiting & Antipiracy Strategies – On Oct. 3, the US Patent and Trademark Office (“USPTO”) hosted a public roundtable focused on potential strategies to combat online piracy and counterfeiting. Specific topics that were discussed included the types of harms that stem from the sale of pirated or counterfeited products, the past development of successful public and private collaborations that have helped reduce such behavior, and the possibility of implementing new technological solutions. The event included a discussion of strategies to combat online copyright infringement.

Senate: Judiciary IP Subcommittee Patent Hearing on the PREVAIL Act – The Senate IP Subcommittee is planning to hold a hearing on the PREVAIL Act (S. 2220) in early November. The PREVAIL Act was introduced this past summer by Sens. Coons (D-DE), Tillis (R-NC), Durbin (D-IL), and Hirono (D-HI) and sought to make several important changes to the inter partes review (“IPR”) process that would make it harder for would-be petitioners to challenge questionable patents issued by the Patent and Trademark Office.

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 consideration of any reforms of Canada’s safe harbor framework for online intermediaries.

Cybersecurity

CISA to Revamp Plans to Respond to Evolving Cyberattacks – CISA will revise the National Cyber Incident Response Plan, a ten-year-old playbook, to address new cyber threats and incorporate new agencies, offices, and authorities. The updated plan will prioritize collaboration with international partners, critical infrastructure providers, and private-sector cybersecurity firms. However, industry pushback remains due to hacking victims withholding information from the government. After gathering input from industry, federal agencies, and partners, CISA plans to release the updated plan by the end of 2024.

CISA Launches Public Awareness Campaign – The Cybersecurity and Infrastructure Security Agency (CISA) launched a public awareness campaign encouraging Americans to adopt basic cybersecurity habits. The campaign includes a 60-second PSA to air nationwide, focusing on online safety and promoting practices such as creating strong passwords, using password managers, enabling multi-factor authentication, recognizing phishing attempts, and updating software. CISA also launched a website and released tip sheets and infographics to support this effort. The year 2023 marks the 20th annual Cybersecurity Awareness Month, the U.S. federal government’s tradition of promoting careful cyber hygiene and ensuring protective precautions for digital assets. Established by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency and a nonprofit, the National Cybersecurity Alliance, every October for the last two decades has been devoted to various initiatives supporting the increasingly important cause.

 NIST: Draft Cybersecurity Framework 2.0 – NIST is accepting public comments through Nov. 4 regarding its Draft of The NIST Cybersecurity Framework 2.0. This draft represents a major update to the CSF—a resource first released in 2014 to help organizations reduce cybersecurity risk. The draft update reflects changes in the cybersecurity landscape and makes it easier to put the CSF into practice for all organizations. The CSF 2.0 draft reflects several major changes, including: an expanded scope, the addition of a sixth function, Govern, and improved and expanded guidance on implementing the CSF—especially for creating profiles.

FCC: Cybersecurity Roundtable – The Federal Communications Commission (FCC) hosted an Oct. 30 roundtable to discuss cybersecurity concerns related to emergency alerts. The event featured remarks from FCC Chairwoman Jessica Rosenworcel and panel discussions on various topics, such as cybersecurity risk management, incident reporting, and the financial implications of implementing improvements. Several cybersecurity officials from the Cybersecurity and Infrastructure Security Agency and the Federal Bureau of Investigation participated.

EPA: Withdrawal of Cyber Rule Impacting Water Utilities – The EPA will no longer require cybersecurity audits for US water utilities. Despite the withdrawal of the cybersecurity rule, the EPA still considers enhancing cybersecurity in the water sector a top priority. The water industry opposes the EPA’s current powers to enforce cybersecurity regulations.

House Republicans Initiate Investigation into Federal Email Breaches – House Republicans on the House Oversight and Accountability Committee reportedly have initiated an investigation into recent email breaches at federal agencies, including the State Department and the Department of Commerce. They requested a briefing from the respective departments to understand the extent of the breach by Chinese hackers.

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

Senate: Commerce Committee Approves FTC Commissioner Nominees – On Oct. 18, the Senate Commerce Committee approved three FTC commissioner nominations: Rebecca Kelly Slaughter (D) (current commissioner), Melissa Holyoak (R) (Solicitor General of Utah), and Andrew Ferguson (R) (Solicitor General of Virginia). The nominations next must proceed to the Senate floor for a final confirmation vote.

FTC and DOJ Announce Two Additional Workshops on 2023 Draft Merger Guidelines –The Federal Trade Commission (FTC) and the Justice Department announced two additional workshops to discuss the 2023 Draft Merger Guidelines. These workshops aim to facilitate public dialogue and complement the many public comments submitted. The second workshop was set for Oct. 5 at the Harvard Kennedy School. The third workshop is scheduled for Nov. 3 at the University of Chicago Law School. The agencies are reviewing public comments that were submitted on the Draft Guidelines.

FTC Proposes New Rule to Ban “Junk Fees” – On Oct. 11, the FTC requested public comment on a new set of proposed rules prohibiting “junk fees,” which the agency describes as hidden or bogus fees that harm consumers and undercut businesses. The newly proposed rule would require businesses to publish all mandatory fees when quoting a price to consumers. The public has 60 days to comment on the rulemaking.

Industry: Google Online Search federal antitrust lawsuit status – Google CEO Sundar Pichai testified on Oct. 30 at the US District Court for the District of Columbia to defend Google in the largest tech antitrust trial since the Microsoft case of the 1990s, a significant moment in the US government’s weeks-long effort to prove that Google has illegally monopolized the online search market. Pichai’s testimony represents Google’s attempt to rebut claims by rivals, including Microsoft CEO Satya Nadella, who testified last month that Google has thwarted competition in search and risks dominating the artificial intelligence sector by training its large language models on search query data that it controls.

Industry: FTC – Amazon lawsuit outlook – The FTC’s antitrust suit against Amazon, which is backed by 17 states, marks a full-circle moment for FTC Chair Lina Khan, who scrutinized Amazon in an influential scholarly paper she wrote as a Yale Law student. In her 2017 paper called “Amazon’s Antitrust Paradox,” Khan argued that the prevailing way of looking at anticompetitive conduct by the impact it has on prices was insufficient in the modern economy. Instead, she pushed for a more progressive approach that examines how corporate concentration impacts the broader market.

• A final decision in the Amazon case will likely come years down the road, assuming the lawsuit isn’t dropped under a new administration, dismissed by a judge, or ended in a settlement akin to the one Amazon reached with European regulators last year. A similar lawsuit filed last year by the state of California is set to go to trial in 2026. The District of Columbia also tried to sue Amazon on antitrust grounds before, but its lawsuit was dismissed by a federal judge last year. Experts say the FTC faces some hurdles in its own case, including convincing the court which slice of the market Amazon is allegedly monopolizing.
•  In a blog post responding to the lawsuit, Amazon General Counsel David Zapolsky accused the FTC of attempting to portray Amazon as something it is not. He said consumers buy over 80% of all retail products in physical stores and that Amazon was “just a piece of a massive and robust retail market” that offers options to consumers and sellers. Brick-and-mortar retailers, online stores, and newer buy-online-pick-up-in-store options, he says, are all competing vigorously with each other.

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

Trade/Tax

EU-US Data Privacy Framework: French MEP Legal Challenge Rejected – The legal challenge filed by a French MEP in September, which sought to nullify the EU-US Data Privacy Framework, was rejected by a European court. A future legal challenge may be forthcoming.

Biden Administration Withdraws Digital Trade Proposals in WTO Talks – The U.S. Trade Representative Katherine Tai has withdrawn digital trade demands in WTO talks, according to a letter from Senate Finance Committee Chairman Ron Wyden. This action on October 25 resulted in immediate negative reactions from congressional leaders and key industry groups in the digital trade space. 

 Biden Administration Takes Action on Export Rules of Advanced Microchips to China – The Biden administration is imposing stricter export controls on certain types of semiconductors used in AI and advanced computing to prevent China from gaining AI capabilities that could be used against the US or its allies. The new rules will make it more difficult for US chip firms to export advanced chips to China.

Commerce Dept. Exempts South Korean Companies from Export Controls – The US Commerce Department will allow Samsung and SK hynix to sell microchip manufacturing equipment to their factories in China, but not the most advanced machines. This aims to limit China’s tech development and preserve America’s advantage in chip development. Korea requested the exemptions, but it’s unclear if they’re satisfied with the partial exemption.

SCOTUS to Hear Case on Swipe Fees – The Supreme Court has agreed to hear a case challenging the cap on debit card “swipe fees” set by the Federal Reserve. A truck stop and convenience store in North Dakota brought the case, claiming that the cap is higher than what Congress intended.

 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

Congress: National Quantum Initiative Act Reauthorization – The first 5-year authorization of the U.S. National Quantum Initiative Act ended on Sept. 30. The NQIA is not expected to be abandoned, but it is unclear when it will be reauthorized or what new elements may be added. The NQIA’s reauthorization is among the legislative business that stalled while House Republicans struggled for several weeks to elect a new Speaker.

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

Artificial Intelligence

Biden Issues AI Executive Order – On October 30, President Biden issued a long-expected artificial intelligence (AI) executive order. The AI EO requires federal agencies to monitor AI risks, protect workers, and address data privacy, cybersecurity, competition, and immigration issues related to AI. It will also establish government offices and task forces, streamline high-skilled immigration, encourage the use of AI in various sectors, and require companies to report on their AI technology protection measures. The order will have influence through federal agencies’ buying power and enforcement tools and will also focus on cybersecurity risks associated with AI.

House and Senate Democrats Send Letter to Biden Regarding the AI EO – Democrats want President Biden to turn non-binding AI safeguards into policy, using the AI Bill of Rights as a guide. The AI Bill of Rights outlines principles for the safe and effective use of AI technology, including protections against algorithmic discrimination and data privacy. The Democrats believe that turning the AI Bill of Rights into federal policy would send a clear message to private actors and federal regulators about guardrails in AI development. The Biden administration has secured voluntary commitments from top AI companies to manage AI risks.

 Senate: Schumer AI Funding Proposal and Additional AI Briefings – During an AI Insight forum in Oct. in the Senate, Majority Leader Schumer emphasized the importance of federal investment in AI to maintain the U.S.’s lead in AI innovation. He called for a nondefense spending of $32 billion annually, which came from the National Security Commission on AI’s 2021 report. Schumer pointed out that the $32 billion estimate is seen as the minimum requirement, and he stressed that significant federal funding is necessary to maximize the benefits of AI while minimizing its negative impacts. In the coming days, the Senate plans to host additional AI-related forums. On November 1st, they will examine issues related to the workforce as well as high-impact systems. On November 8th, they will explore democracy, followed by privacy/liability.

Senate: Schatz and Kennedy Introduce AI Disclosure Bill; Thune and Klobuchar Release New Draft AI Research & Accountability Act – Senators Schatz and Kennedy introduced the AI Labeling Act, which would require the disclosure of AI-generated visual and audio content. They suggest social media platforms develop standards for identifying such content. Meanwhile, Senators Thune and Klobuchar released another draft of their AI bill, “The Artificial Intelligence Research, Innovation, and Accountability Act of 2023,” in October with plans to officially introduce it.

Senate: Klobuchar Highlights AI Election-Based Legislation at Senate Rules Hearing – Sen. Amy Klobuchar (D-MN) convened a hearing in late Sept. to discuss the potential threat of artificial intelligence (AI) to disrupt elections and undermine democracy. The Protect Elections from Deceptive AI Act, which Klobuchar co-introduced with Hawley, Coons, and Collins, seeks to prohibit the use of artificial intelligence to generate materially deceptive content falsely depicting federal candidates in political advertisements intended to influence federal elections. Klobuchar aims to pass legislation before the upcoming election. She stated that there must be a balance between these regulations and First Amendment rights to free speech.

NIST: NAIAC Open Meeting on October 19; AI Risk & Evaluation Updates – The National Artificial Intelligence Advisory Committee (NAIAC) held an open meeting on October 19, 2023, to report working group findings and receive updates on the NAIAC Law Enforcement Subcommittee. The NAIAC is tasked with advising the President and the National AI Initiative Office on topics related to the National AI Initiative. NIST also plans new risk evaluation methods and standards tracking for AI. The associate director for emerging technology at the NIST recently testified before the House Science Committee that the evaluations are designed to identify potential harms from AI systems before they are deployed.

Canada’s Plan to Regulate AI – Canada proposes regulating AI use on search and social platforms, including content moderation, healthcare, court services, and employment practices. The government aims to align the bill with the EU’s AI Act and declare privacy a fundamental right. Various groups are advocating for changes to the bill.

U.N. Establishes 39-Person Advisory Board for Global AI Rules – The UN has established a 39-person board to develop global AI regulations. The board will assess AI’s risks and potential and provide non-binding recommendations by next summer. The UN aims to coordinate international AI regulation efforts and may suggest creating new global agencies. The EU, UK, US, China, G7, and G20 are also working on regulating AI. Brussels is finalizing its AI Act, and London hosts its AI Safety Summit Nov. 1-2.

G-7 Countries AI Principles – On October 30, 2023, the G7 leaders announced they had reached an agreement on a set of International Guiding Principles on Artificial Intelligence (AI) and a voluntary Code of Conduct for AI developers, pursuant to the Hiroshima AI Process. The Hiroshima AI Process was established at the G7 Summit in May 2023 to promote guardrails for advanced AI systems at a global level. The Guiding Principles are intended to assist organizations in developing, deploying, and using advanced AI systems to promote the safety and trustworthiness of the technology.

UK: Global AI Safety Summit – The UK is holding a two-day AI safety summit on Nov. 1 and Nov. 2 and will host government officials and companies from around the world, including the U.S. and China. The AI summit is being held in Bletchley Park, the historic landmark around 55 miles north of London. It’s the location where, in 1941, a group of codebreakers led by British scientist and mathematician Alan Turing cracked Nazi Germany’s notorious Enigma machine. It’s also no secret that the U.K. is holding the summit at Bletchley Park because of the site’s historical significance–it sends a clear message that the U.K. wants to reinforce its position as a global leader in innovation. The summit provides Prime Minister Rishi Sunak a chance to make a statement to the world on the U.K.’s role in the global conversation on AI and how the technology should be regulated.

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

Telecommunications

FCC: Open Internet (Net Neutrality) Notice of Proposed Rulemaking Adopted – On Oct. 19, the Federal Communications Commission (FCC) voted 3-2 to initiate an Open Internet rulemaking in which it proposes to reinstate net neutrality rules on broadband providers. The proposal builds on Obama-era rules that were repealed during the Trump administration and which banned internet service providers from blocking and throttling consumers’ internet traffic. The FCC proposes to reclassify broadband from a lightly regulated information service to a more heavily regulated telecom service–a point of contention for the telecom industry and many Republicans. The FCC has included numerous questions for comment to address how its proposal to reinstate open Internet rules fits with current marketplace realities and recent technological developments. Comments are due December 14, 2023, and reply comments are due January 17, 2024.

FCC Commissioner Carr Cautions Against Adopting Europe’s Internet – FCC Commissioner Brendan Carr warned against adopting Europe’s internet controls, urging the FCC to reconsider net neutrality rules. Carr believes America’s regulatory model is effective and networks are functioning well. 

Congress: Republicans Oppose FCC Net Neutrality NPRM – In an Oct. 5 letter, Senate Republicans, led by Ted Cruz (R-TX) and John Thune (R-SD), urged FCC Chairwoman Jessica Rosenworcel to abandon her draft net neutrality proposal. They argue that reinstating net neutrality regulations and reclassifying broadband as a Title II service would be unnecessary and would not survive judicial review, citing as support for this outcome the “major questions” doctrine. They claim that the Internet has thrived since the 2015 rules were rescinded and that imposing heavy-handed regulations would hinder progress. The Republican members of the House Energy and Commerce Committee sent an Oct. 17 letter to FCC Chair Rosenworcel opposing the initiation of a net neutrality rulemaking. The House E&C GOP letter also includes an argument that the FCC’s proposal is unlawful, asserting that regulation of broadband is undoubtedly a “major question” of economic and political significance. The letter argues that under the major questions doctrine articulated in West Virginia v. EPA, an agency must wait for Congressional authorization before acting. In other words, if broadband needs to be regulated as a utility, that is a decision for Congress to make, not the FCC. The letter states that Congress has not enacted legislation to expand the FCC’s authority to regulate broadband and that, therefore, the FCC cannot act to regulate it on its own.

WISPA asks for FCC Net Neutrality Waiver – The Wireless ISP Association has urged the FCC not to impose stricter regulations on its small broadband Internet service provider members under the proposed net neutrality rules. WISPA argues that its members lack the market power and incentive to engage in practices such as blocking or throttling. The group argues that the proposed reclassification could disproportionately affect WISPs, as they have limited resources for regulatory compliance. The added costs of Title II regulation could lead to higher prices for broadband services and less investment in broadband deployment.

FCC: First Opening Meeting with Full Commission – In addition to approving an Open Internet (Net Neutrality) Notice of Proposed Rulemaking, the FCC approved several other measures at its first open meeting on October 19 with a full panel of Commissioners. These include expanding Wi-Fi subsidies for schools, using broadband data for maternal health research, and allowing low-power devices to operate in the 6 GHz band. The DOT and NTIA have raised concerns with the FCC about the harm to cellular vehicle-to-everything operations in the 5.9 GHz band due to out-of-band emissions from portable devices in the adjacent 6 GHz band. There are also plans to fund Wi-Fi connectivity on school buses and establish a fund to support Alaskan broadband. The Wireless Emergency Alerts program will be updated to support multilingual alerts and include maps.

FCC Chair Releases November 15 Meeting Agenda – The FCC’s upcoming open meeting on November 15th will address several issues, such as the adoption of digital discrimination rules, safe access to communication services for domestic violence survivors, the use of AI to combat robocalls and fraud, and changes to amateur radio regulations. These measures aim to promote fairness, safety, and innovation in the telecommunications industry.

NTIA Urges FCC to Adopt Strong Rules Against Digital Discrimination – With the looming November 15, 2023, deadline to implement rules, NTIA has urged the FCC to create strong rules against digital discrimination to address unequal internet access and bridge the digital divide. In an ex parte filing, they recommend defining digital discrimination to include intentional and unintentional practices that lead to disparities in internet service. Industry stakeholders have urged the FCC to limit “disparate treatment” to intentional and unlawful discrimination. 

FCC Grants Rip and Replace Extensions – The FCC granted six-month extensions to some participants of the Secure and Trusted Communications Networks Reimbursement Program to remove and replace Huawei and ZTE equipment due to a funding shortfall. The FCC has been urging Congress to provide additional funding, as reimbursements will be prorated without it. The extensions were granted due to the slow removal and replacement process caused by the lack of full funding. However, the FCC emphasizes the need for full funding to ensure timely equipment removal from the nation’s communication networks.

FCC Sets Date for ISP Broadband Labels – Internet service providers (ISPs) in the United States must comply with the Federal Communications Commission’s (FCC) broadband label rules by April 10. The rules aim to provide consumers with clear and transparent information to help them make informed decisions about their internet service. ISPs with up to 100,000 subscribers have until October 10, 2024, to comply with the rules. 

FCC Proposes New MVPD Retrans Regulations – The FCC proposed two Notices of Proposed Rulemaking to shield consumers from programming blackouts during retransmission consent negotiations. The proposals would require MVPDs to refund subscribers affected by blackouts and report them to the FCC. MVPDs are likely to object to the refund requirement, while broadcasters prefer the FCC to stay out of negotiations.

Senate: Cruz, Budd, and Capito Introduce Bill to Limit Social Media Access at School – The Senators introduced the Eyes on the Board Act, which aims to restrict children’s access to social media in E-rate funded schools. It would require schools to ban access to social media platforms on subsidized services, devices, and networks. This bill is in response to FCC Chairwoman Rosenworcel’s efforts to expand E-Rate to include wireless access on school buses.

Biden Admin.: Funding Request for Rip & Replace and the Affordable Connectivity Program – The Biden administration is asking Congress for $3 billion to fill the funding gap in the FCC’s rip-and-replace program, which requires broadband providers to replace equipment from Chinese companies due to espionage concerns. The request is part of a $55.9 billion domestic aid package that includes disaster relief and childcare subsidies. Additionally, $6 billion is requested to continue the Affordable Connectivity Program, an internet subsidy set to expire in April 2024. The ACF program, initially created with funding from the 2021 bipartisan infrastructure law, now helps more than 21 million low-income households pay for their monthly broadband bills.

FCC Will Hold a Precision Agriculture Public Meeting on November 6 – The Federal Communications Commission (FCC) will hold a public meeting for its Task Force for Reviewing the Connectivity and Technology Needs of Precision Agriculture in the United States. The meeting will occur on November 6, 2023, at the FCC Headquarters in Washington, DC. It will also be available via a live Internet link. The agenda for the meeting includes voting on reports and recommendations discussed during the Task Force’s term. Members of the public can submit questions and comments to the Task Force through designated channels. Accommodations for people with disabilities can be requested in advance.

DOD Submits 3.1 GHz Spectrum Feasibility Assessment to Commerce Department – The U.S. Department of Defense (DOD) has submitted its analysis of the 3.1 GHz band to the Commerce Department. The wireless industry may use this band for 5G. The importance of spectrum for economic prosperity, technological leadership, and national security was highlighted. Spectrum is crucial for high-speed wireless internet access, connected vehicles, military radar operations, and advanced military capabilities. The White House is coordinating discussions on spectrum policy to address the nation’s needs. This analysis was required for the 2021 Infrastructure Investment and Jobs initiative.

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

Energy/Environment

Biden Admin. Electric Grid Federal Investment – On Oct. 30, President Joe Biden announced a $1.3 billion federal investment to build three new interstate power lines in an effort to upgrade the United States’ outdated electric grid and transition it to clean energy. The electric transmission lines will cross through six states: Arizona, Nevada, New Hampshire, New Mexico, Utah, and Vermont.

CA: Gov. Newsom Signs Carbon Emissions Disclosure Law – California Governor Gavin Newsom signed into state law a bill that will require large corporations to disclose their carbon emissions by 2026. The Climate Corporate Data Accountability Act, or SB 253, will mandate that publicly traded companies with more than $1 billion in annual revenue – more than 5,300 businesses operating in the state – to document emissions across their supply chain, from operating buildings and storefronts to employee travel, transporting products, and more. The legislation was supported by some businesses – such as Apple and Patagonia – but also has strong industry opposition. Newsom has acknowledged that the law’s 2026 deadline may not be feasible and has expressed openness to flexibility. Failure to comply with the law could lead to a $500,000 fine. The California law exceeds the federal Security and Exchange Commission’s 2022 proposed rule. We are hearing the Biden Administration hopes to finalize its proposed rule by January 2024.

Administration Announces Zero-Emission Buildings Effort – The Biden Administration announced a new Zero-Emissions Buildings initiative, an effort to establish a new national standard for Net-Zero Emissions Buildings by 2045, including a 50% reduction by 2032, in an effort to combat a significant contributor to climate change in the United States. Although the definition is not legally binding, it would assist real estate developers in navigating the patchwork of state and local regulations that have been issued to reduce building emissions. The definition will have three pillars to aid in designing more energy-efficient buildings, zero on-site emissions, and using renewable energy at 100 percent.

Biden-Harris Administration Host White House Climate Resilience Summit – In late September, the Biden administration held a White House Climate Resilience Summit. It announced over $500 million in additional investment for resilience efforts. The summit aimed to address the impacts of climate change and promote community-driven strategies. Additionally, the administration released the National Climate Resilience Framework, which includes various measures to boost climate resilience, such as strengthening the power grid, establishing new community climate resilience centers, and ensuring resilient lands and waters.

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

RELEVANT HEARINGS & EVENTS TRACKED BY i2COALITION IN OCTOBER & NOVEMBER 

October 3

• Senate Judiciary, IP Subcommittee, “Back to School with the SHOP SAFE Act: Protecting Our Families from Unsafe Online Counterfeits.” 

October 4

• Senate Commerce, Science, and Transportation,“ CHIPS and Science Implementation and Oversight,” “CHIPS and Science Implementation and Oversight.” 
  • Secretary Gina Raimondo, U.S. Department of Commerce
  • Dr. Sethuraman Panchanathan, Director of the National Science Foundation

October 18

• House Science, Joint Oversight and Investigations and Research and Technology Subcommittee, “Balancing Knowledge and Governance: Foundations for Effective Risk Management of Artificial Intelligence.” 

• Senate Commerce Committee, Executive Session, Nominations. 

• • • Michael Whitaker to be Administrator of the Federal Aviation Administration
    • Rebecca Kelly Slaughter to be a Commissioner of the Federal Trade Commission
    • Melissa Holyoak to be a Commissioner of the Federal Trade Commission
    • Andrew Ferguson to be a Commissioner of the Federal Trade Commission

• House Energy and Commerce, Subcommittee on Innovation, Data, and Commerce, “Safeguarding Data and innovation: Setting the Foundation for the Use of Artificial Intelligence.” 

October 19

• House Judiciary, Subcommittee on Courts, Intellectual Property, and the Internet. “IP and Strategic Competition with China: Part III – IP Theft, Cybersecurity, and AI.” 

October 25

• House Energy and Commerce, Subcommittee on Energy, Climate, and Grid Security Markup 

• H.R. 4167, Protecting America’s Distribution Transformer Supply Chain Act [PDF 224KB]

• H.R.__, Hands Off Our Home Appliances Act [PDF 59KB]

• Senate Budget, “Bottlenecks and Backlogs: How Climate Change Threatens Supply Chains.” 

• Senate Judiciary, “Ensuring the Safety and Well-Being of Unaccompanied Children, Part II.” 

• House Oversight and Accountability, Subcommittee on Economic Growth, Energy Policy, and Regulatory Affairs, “The Power of Apprenticeships: Faster, Better Paths to Prosperous Jobs and Less Waste in Higher Education.” 

• Senate Energy and Natural Resources, Subcommittee on Public Lands, Forests, and Mining Hearing to Receive Testimony on Pending Legislation, including S.2855, CLOSE THE GAP Act (to modernize and streamline the permitting process for broadband infrastructure on Federal land, and for other purposes).

October 31 

• Senate Appropriations, Full Committee, “A Review of the National Security Supplemental Request.” 

• Senate Health, Education, Labor, and Pensions, Subcommittee on Employment and Workplace Safety, “AI and the Future of Work: Moving Forward Together.” 

November 2

• Senate Homeland Security and Governmental Affairs, Nominations hearing

• • Harry Coker Jr. to be National Cyber Director, Executive Office of the President