TECH & CYBER BRIEFING: Liability Shield, Autonomous Cars at CES

By Rebecca Kern and Giuseppe Macri

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The broad liability shield that has helped large tech platforms like Google, Facebook and Twitter become giants, already in the sights of lawmakers and regulators in Washington, has now drawn the attention of CES as well.

A panel at the Las Vegas tech conferences yesterday focused on the future of Section 230 of the Communications Decency Act of 1996, a once-obscure provision that grants large tech companies liability protection for content on their platforms.

Section 230 has been assailed across the political spectrum, drawing the ire of lawmakers from Speaker of the House Nancy Pelosi (D-Calif.) to former Republican presidential contender Sen. Ted Cruz (R-Texas).

Sens. Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.) are working on legislation to make tech companies’ Section 230 liability protections contingent on ensuring safety of children online. Sen. Josh Hawley (R-Mo.) has offered a bill (S. 1914) that seeks to remove liability protections for large tech platforms unless they ensure content on their sites is politically neutral.

Jeff Kosseff, the author of a book on Section 230 and cybersecurity professor at the U.S. Naval Academy, told Bloomberg Government in an interview ahead of the CES panel that the overall increase in lawmaker scrutiny on big tech has drawn the provision along into the spotlight.

“I think for all the sides, Section 230 is a really useful target because it’s seen by many as this huge subsidy for platforms, and people aren’t happy with the platforms and they have reasons not tp be happy with the platforms,” Kosseff said in the interview.

“I do cybersecurity work, so I work with agencies like the NSA,” Kosseff said. “It was easier for me to get information from the NSA than it was from social media companies,” Kosseff said. He has begun to see changes in the companies behavior, adding “it’s a little late.”

Section 230, Privacy Bill Outlook: Kosseff doesn’t anticipate any bills to change Section 230 moving through Congress this year, he said. He also thinks it’s unlikely we’ll see a national privacy bill. “In an election year, passing significant legislation is going to be really hard,” Kosseff said. “I haven’t seen any proposal that has gotten substantial bipartisan support for either privacy or 230.”

However, he does expect the growing bipartisan frustration with tech platforms and their broad liability shield to lead to future changes. “Given the fact that you have Speaker Pelosi and Senator Cruz agreeing that they don’t like Section 230, for very different reasons, I think there’s a pretty good chance that some time in the next few years there will be some sort of further amendments to Section 230,” he said during yesterday’s panel.

Innovation and Privacy Panel: A staffer for Sen. Brian Schatz (D-Hawaii) said she expects we’ll see a federal privacy bill in 2020.

“I think that there a lot of areas where there is agreement and I think that there are big areas where we need to come to some sort of compromise on,” Christi Barnhart, senior counsel for Schatz, said on a panel yesterday on innovation and privacy. She said a private right of action, preemption and a duty of loyalty remain unresolved issues. “Both sides I think are committed to work these things out,” she said. She added that fragmented state laws “may make compromise easier for all parties.”

“I’m going to say yes, we’re going to have privacy in the 2020 year,” Barnhart said.

Self-Driving Cars Need ‘Performance-Based’ Rules, Chao Says: Also at CES, Transportation Secretary Elaine Chao announced that the agency wants to prevent companies from taking self-driving car research outside the U.S., as Congress has yet to produce legislation to regulate the technology. Chao outlined guidance developed with the White House on how more than 30 federal departments and agencies will promote unified federal rules on self-driving cars under development by companies including Uber, Waymo, Ford, and General Motors.

The laws governing self-driving cars currently vary by state. Companies have said they’ll test the technology outside the U.S. if the government fails to create consolidated regulations. Read more from Courtney Rozen.

What to Watch At CES Today: The last of the innovation policy panels at CES will focus on another hot topic in Washington: whether to break up big tech. Investigations by the House Judiciary Committee, the Department of Justice and the Federal Trade Commission are looking into anti-competitive behavior of companies including Facebook, Amazon, Google and Apple.

Panelists include Robert Atkinson, president of the Information Technology and Innovation Foundation; Zach Graves, head of policy at the Lincoln Network; Charlotte Slaiman, senior policy counsel at Public Knowledge; and Jennifer Huddleston, research fellow at the Mercatus Center at George Mason University.

Happening on the Hill

House Antitrust Panel to Hold Hearing on Big Tech Market Power: The House antitrust panel investigating the technology industry will hear complaints next week about the market effect that big technology giants have on smaller companies, Naomi Nix reports. The House Judiciary antitrust subcommittee will hear testimony from Sonos CEO Patrick Spence and David Barnett, the founder and CEO of PopSockets, among others.

The hearing, which will take place in Boulder, Colo., will likely amplify concerns from smaller tech firms that major platforms such as Google and Amazon copy their innovations and then use marketplace dominance to squash competition. On Tuesday, Sonos sued Google, alleging the search giant ripped off its designs for wireless home speakers and placed them inside Google phones and laptops.

This will be the fifth hearing of the broad antitrust inquiry led by Rep. David Cicilline (D-R.I.).

Upcoming Hearings:

  • The Senate Commerce, Science, and Transportation Committee will hold a hearing next week on “Industries of the Future.” The Jan. 15 hearing will examine artificial intelligence, advanced manufacturing, quantum information science, biotechnology, and developing the next generation of wireless networks and infrastructure, the panel said in a statement. Witnesses include Kratsios, NIST Director Walter Copan, National Science Foundation Director France Cordova, and FCC Commissions Michael O’Rielly and Jessica Rosenworcel.
  • The House Energy and Commerce Committee’s Communications and Technology Subcommittee will hold a hearing Jan. 15 titled “Lifting Voices: Legislation to Promote Media Marketplace Diversity.”

Legislative Developments:

  • The Senate cleared legislation that would allow the FCC to impose up to $2 million in fines against unauthorized radio broadcasters, or so-called pirate radio stations. The bill (H.R. 583) by Rep. Paul Tonko (D-N.Y.), now heads to the president’s desk. The House passed the bill last February. Read more from Jon Reid.
  • The Senate passed S. 1611, the Developing Innovation and Growing the Internet of Things Act, a bipartisan bill which directs the FCC to create a working group of federal stakeholders to provide recommendations and a report to Congress relating to the aspects of internet-connected devices. It also directs the FCC to work with the National Telecommunications and Information Administration to seek comment on future spectrum needs for IOT devices.
  • The House passed four bills yesterday dealing with 5G and wireless deployment: H. Res. 575 to consideration of “The Prague Proposals; ” H.R. 2881 to develop a strategy to protect U.S. wireless technologies; H.R. 4500 to promote private-sector involvement with international organizations that set standards for wireless networking technologies; and H.R. 3763 to establish an interagency working group to enhance U.S. leadership for wireless technologies.

More Headlines:

Industry and Regulation

Facebook’s Deepfakes Policy ‘Inadequate’ to Some Lawmakers: Facebook’s new policy to address “deepfake” videos came under fire from some lawmakers and disinformation experts who say it fails to address other kinds of online manipulation.

The criticism, in interviews, on Twitter, and in a hearing on Capitol Hill yestersday, followed the unveiling of the social media giant’s policy to remove video forgeries produced with the aide of artificial intelligence that show people doing and saying things they never did. Deepfakes have raised the possibility of extensive political manipulation — a pressing concern going into the 2020 presidential election.

“Big tech failed to respond to grave threats posed by deepfakes as evidenced by Facebook scrambling to announce a new policy that strikes me as wholly inadequate,” Rep. Jan Schakowsky (D-Ill.), who leads the subcommittee that hosted a hearing Wednesday on online deception. Read more from Ben Brody.

Trump Taps FCC Inspector General: President Donald Trump yesterday announced his intent to nominate John Chase Johnson to be the inspector general at the FCC. Johnson is an attorney at Covington & Burling and is a former Marine who served in Afghanistan, the White House said in a statement.

FCC to Finish Rules Jan. 30 for $20 Billion Rural Broadband Fund: The FCC will vote Jan. 30 to adopt final rules for a program to distribute more than $20 billion to help telecom providers expand broadband internet connections in rural areas. The funds would be doled out over the next decade to areas where the FCCstimates there are about 6 million homes and businesses without internet service. Read more from Jon Reid.

More Headlines:

To contact the reporters on this story: Rebecca Kern in Washington at rkern@bgov.com; Giuseppe Macri in Washington at gmacri@bgov.com
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To contact the editors responsible for this story: Zachary Sherwood at zsherwood@bgov.com; Brandon Lee at blee@bgov.com

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