Senate Judiciary Finishes Work One “Big Tech” Antitrust Bill and Starts On Another
Key U.S. House Members announce retirement; EDPB approves new guidance; OAIC weighs in on Australia's Privacy Act review
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The Senate Judiciary Committee sent one antitrust bill to the full Senate while beginning consideration on another. The “American Innovation and Choice Online Act” (S. 2992) (see here for more detail and analysis on the bill as introduced) was changed significantly with a number of amendments offered, most notably a number of alterations in a manager’s amendment. The bill was reported out by a 16-6 vote. The committee also began the markup process for the “Open App Markets Act” (S. 2710), which could conclude at the next committee business meeting.
S.2992 follows a similar bill the “Ending Platform Monopolies Act” (H.R.3825) the House Judiciary Committee sent to the House last June after a contentious markup. Thus far, this bill and the five others reported out have not come to the House floor. The politics on passing legislation to rein in “Big Tech” will be tricky considering support and opposition for such measures generally cuts across the parties as evidenced by the opposition of California’s Senators to S.2992, both of whom sit on the Senate Judiciary Committee.
In advance of the hearing, stakeholders made their views on S.2992 known. “35 small and medium tech companies” “sent a letter to the Senate Judiciary Committee urging it to advance legislation…to stop major digital platforms from unfairly preferencing their own products or services.” Consumer Reports wrote the committee and said “supports S. 2992 and applauds the bipartisan group of Senators working together to address the problematic market power of the largest online platforms.” “Apple wrote the committee, claiming both bills “hurt competition and discourage innovation” and do “real harm” towards “American consumers’ privacy and security.” Google argued in a blog post that “these bills could prohibit us from giving you integrated, high-quality results — even when you prefer them — just because some other company might offer competing answers” among other consequences. Tech Freedom wrote that without careful changes, “provisions [of S.2992] will be exploited by extremists as ways of pressuring digital platforms to continue carrying dangerous misinformation, incitement to violence, hate speech and the like.” Free Press asserted in a press release that S.2992 “would make it difficult or impossible for covered companies to deplatform and remove from their sites any business that traffics in hateful, racist, violent or otherwise harmful content.”
In his opening statement, Chair Dick Durbin (D-IL) sounded positive notes about the legislation before the committee and the bipartisan cooperation that has gone into both. He noted parenthetically that he had to deny requests from Senators to delay the markup of S.2992 because the legislation addresses important issues and the committee has limited opportunities to legislate. Moreover, Durbin mentioned the 15 December subcommittee hearing on the bill which only eight Senators attended. He added the manager’s amendment was filed on 18 January and concluded that clearly Senators have had a chance to review it, for 107 amendments have been filed, including 82 from one Senator.
Ranking Member Chuck Grassley (R-IA) asserted in his opening remarks that S.2992 prevents dominant “Big Tech” platforms from anti-competitive behavior in preferencing their own products or discriminating against others’ products, thus ensuring robust competition. He said the playing field would be leveled for small businesses and entrepreneurs, and he stressed the bill “does not break up Big Tech or destroy the products and services they offer that many of us, including myself, enjoy and use.” Grassley said the manager’s amendment incorporates feedback from both Senators and stakeholders and addresses, among other things, national security concerns by clarifying the legislation does not require sharing data with bad actors, by making clear a business can use consent before sharing data with a third party entity, by ensuring that “Chinese Big Tech” companies like TikTok are “subject to the same rules of the road,” and by stating that enforcement actions can only be brought in federal trial courts. He declared these are but a few of the improvements the manager’s amendment makes to S.2992.
After debating and disposing of a number of judicial nominations, the committee commenced with consideration of S.2992. Senator Amy Klobuchar (D-MN), the chair of the Competition Policy, Antitrust, and Consumer Rights Subcommittee and lead sponsor of the bill, stated the “American Innovation and Choice Online Act” seeks to address the abuses of dominant platforms, some of which are the largest companies in the world and are no longer garage startups. She contended the Congress has not meaningfully updated its antitrust laws since the birth of the internet. Klobuchar noted the money and power of some of these companies as Amazona and Facebook were in the top three of federal lobbying expenditures. She stressed that many Members want these companies to succeed but under rules that are fair to all players in these markets.
Regarding the manager’s amendment, Klobuchar said changes were made to make clear that certain privacy enhancing mechanisms are permitted, to clarify that private companies are subject to the legislation, to stress that subscription services like Amazon Prime are not affected by the bill, to require the U.S. Federal Trade Commission (FTC) and Department of Justice (DOJ) provide robust guidance to the business community within nine months of passage, and to establish a one year period for covered platforms to come into compliance. She declared the bill strikes a common sense balance that allows platforms to continue to compete with overseas rivals while respecting privacy and security for users.
Senator Patrick Leahy (D-VT) explained that there are important issues and ramifications he needs to see addressed before he can support the bill on the floor. He stated his appreciation that the manager’s amendment includes additional protections for intellectual property and end-to-end encryption used by platforms. Leahy said he still had some concerns, including his foremost worry that S.2992 makes it too difficult for online platforms to protect the privacy of users by creating a bar that is too high to meet without any significant concern about being penalized. He said this could create a race to the bottom on privacy for Americans. Leahy said he also had concerns about unintended adverse consequences for small businesses and national security. He said he looked forward to working with the sponsors.
Senator Mike Lee (R-UT), who is the ranking member on the Competition Policy, Antitrust, and Consumer Rights Subcommittee, said self-preferencing and other anti-competitive behavior in Big Tech has long been a concern of his. He said he shares many of the goals and intentions behind of the bill. Lee took exception to the claim that he and others have filed amendments to thwart the bill and expressed his desire to work to improve the bill. He said he worries about the broad scope and vague language that could lead to harming consumers and may entrench the dominant platforms if they cease doing business with smaller companies. Lee expressed his concern about the lack of scrutiny S.2992 has gotten with respect to unintended consequences and said there has not been one legislative hearing on the bill. He wondered how the interoperability requirements might affect cybersecurity and privacy or whether judges will interpret the bill to protect consumers or individual competitors.
Senator Dianne Feinstein (D-CA) articulated her extreme concern about S.2992 because it targets a small number of companies headquartered in her state, California. She said if enacted, this bill would establish a two-tiered antitrust system in the U.S. with large technology companies being subject to different, tougher standards. Feinstein argued for one uniform standards and provided an example under which Walmart or Target could engage in conduct Amazon would be barred from. She noted that the original antitrust laws indeed were inspired by a handful of companies, the resulting legislation applied to everyone. She took issue with the effect privacy and security measures Apple and Google are taking and would likely result in degraded security for users. She said that she has been told federal agencies have concerns about these provisions. Feinstein said she would oppose the bill and claimed the legislation would have benefitted from a full committee hearing before being marked up.
Many other Senators spoke on the bill before the committee turned to amendments. First, Senator John Cornyn (R-TX) offered an amendment that would address his fears that the bill would harm U.S. businesses while rewarding U.S. adversaries, most notably the People’s Republic of China (PRC). His language would “keep Americans’ data out of the hands of the PRC and the Communist Party” and stop companies and entities from such nations from having access to the internal workings of the U.S. firms. Cornyn explained his concerns that S.2922 would allow the PRC to vacuum up even more U.S. personal data and access the proprietary methods and practices of U.S. companies.
Klobuchar offered language amending Cornyn’s amendment (a so-called second degree amendment) she and Grassley worked on that she claimed addresses vague and overbroad language in Cornyn’s amendment. Her language, she argued, clarifies that Cornyn’s amendment would only apply to the governments of foreign adversaries or companies they control. The Klobuchar/Grassley second degree amendment was adopted by a 13-9 vote, and the amended Cornyn amendment was adopted 22-0.
Lee offered an amendment that would allow courts to assume that covered platforms have monopoly power for purposes of establishing liability, but he said he would hold off an asking for a roll call vote. Lee turned to another amendment that addresses what he sees as a problem with the affirmative defenses that he called “hollow” and “window dressing.” Senator Jon Ossoff (D-GA) offered a second degree amendment he said would ideally strike the right balance between privacy and cybersecurity through “toughening the standard slightly” companies would need to meet to use an affirmative defense. Specifically, Ossoff explained, covered platforms could prove an action otherwise in violation of the law is indeed non-pretextual through proving the action was undertaken to protect privacy or cybersecurity. The Ossoff amendment failed by a 3-19 vote, and the Lee amendment also failed by a 10-12 vote.
Lee offered another amendment that addresses how online platforms are designated as such, with two U.S. agencies having the power to name such companies with little recourse to challenge the designation. He said his amendment would strike the section. This amendment failed by a 6-16 vote.
Cornyn offered an amendment that would, as he described, prevent the bill from making U.S. companies more vulnerable to state-sponsored cyber-attacks and hacking. The amendment failed on a tie vote of 11-11.
Senator Marsha Blackburn (R-TN) offered an amendment that would change the evidentiary burden for agencies to “substantial evidence” for designation of covered platforms so that the bill would comport with Administrative Procedures Act’s usual showing. This amendment failed by a 9-13 vote. Klobuchar said she and Blackburn had agreed to work on her remaining amendments so they would not need to be offered at the markup.
The committee reported S.2992 favorably to the Senate by a 16-6 vote.
Turning to the other bill on the agenda, Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN) introduced the “Open App Markets Act” (S.2710) last August that they claimed in their press release “would set fair, clear, and enforceable rules to protect competition and strengthen consumer protections within the app market.”
Companies covered by the new regime would those that own or control an app store with more than 50 million users in the U.S. This certainly would encompass Apple and Google, but it may also sweep in Microsoft, Sony, and others for their video game marketplaces.
In any event, those companies covered by the bill would be prohibited from requiring companies using their app stores to also use the former’s in-app payment system, demanding that companies offering apps give them more favorable terms than other app stores, or taking action to impose less favorable conditions if an app developer offers its app on a different platform under better terms. Moreover, covered companies could not bar or restrict app developers from communications with users about “legitimate business offers, such as pricing terms and product or service offerings.” Additionally, large app store companies could not use non-public business information to compete against app developers on their platforms in order to compete with them.
Covered app store owners and operators would have new interoperability requirements. Notably, these companies must make readily available for users to choose app store company apps or third party apps as defaults, allow sideloading (i.e. obtaining and installing apps from other sources like one can on a laptop), delete or hide preinstalled apps.
Covered app stores would not be allow to preference its own apps in searches by “unreasonably preferencing or ranking.” Moreover, “[a]ccess to operating system interfaces, development information, and hardware and software features shall be provided to developers on a timely basis and on terms that are equivalent or functionally-equivalent to the terms for access by similar Apps or functions provided by the Covered Company or to its business partners.”
However, covered app stores would not violate of the aforementioned new requirements if its actions are:
§ necessary to achieve user privacy, security, or digital safety;
§ taken to prevent spam or fraud; or
§ taken to prevent a violation of, or comply with, Federal or State law.
And yet, the company bears the burden of proving this is the case by “clear and convincing evidence,” a higher standard than the usual burden in civil trials, that the action was not a pretext to essentially circumvent the new restrictions and such measures were narrowly tailored.
The FTC, DOJ, or state attorneys general could enforce the new law, and the FTC would receive authority to litigate independently of the DOJ. App developers would also be permitted to sue for three times the damages and reasonably attorneys’ fees or simple interest on actual damages under some circumstances.
§ Two key Members on cybersecurity issues have announced they will not seek reelection in 2022. Representative James Langevin (D-RI) who has long been one of Congress’ leading lights on cybersecurity issues will step down at the end of this Congress. Langevin chairs the House Armed Services subcommittee with jurisdiction over cybersecurity issues and serves and is also on the House Homeland Security Committee. He was instrumental in getting some of the Cyberspace Solarium Commission recommendations enacted, including establishing the National Cyber Director position and office. House Homeland Security Committee Ranking Member John Katko (R-NY) also announced his retirement from Congress. Katko has been instrumental in working with Democrats on cybersecurity measures such as the “Cyber Incident Reporting for Critical Infrastructure Act of 2021” (H.R.5440), which Katko and a key Democratic cosponsor vowed they would get across the finish line this year.
§ The White House issued a fact sheet titled “Biden-Harris Administration Hits the Ground Running 60 Days into Infrastructure Implementation” and among the steps they highlighted are the following tech items:
o The Federal Communications Commission launched the Affordable Connectivity Program providing broadband subsidies of up to $30/month for low-income households (up to $75/month for households on Tribal Lands) and up to $100 towards the purchase of a desktop, laptop or tablet computer.
o The U.S. Department of Agriculture (USDA) began accepting applications for the $1.15 billion ReConnect rural broadband program for loans and grants to state, local or territory governments, corporations, Native American Tribes and limited liability companies and cooperative organizations to help people in rural areas get access to high-speed internet, which will be boosted by the infrastructure law.
o Vice President Harris and the Department of Commerce (DOC) announced the first and second sets of grants for the Tribal Broadband Connectivity Program, totaling $2.4 million, which is receiving additional funding through the Bipartisan Infrastructure Law.
o The National Telecommunications and Information Administration (NTIA) at the DOC hosted the first two in a series of broadband listening sessions with more than 1,400 participants to inform how the Administration implements several of the historic broadband program funded by the infrastructure law.
o The NTIA also published a request for comment seeking public input on the design and implementation of the Broadband Equity, Access and Deployment Program, the Middle-Mile Broadband Infrastructure Program, and the Digital Equity Planning Grant Program which together will distribute more than $43 billion in broadband funding.
o Vice President Harris announced an EV Charging Action Plan to achieve the President’s goal of building a national network of 500,000 electric vehicle chargers.
o Transportation Secretary Pete Buttigieg and Energy Secretary Jennifer Granholm formed a Joint Office of Energy & Transportation focused on building out the national network of EV chargers.
§ The European Data Protection Board (EDPB) adopted “Guidelines on the Right of Access” and “a letter in reply to letters calling for a consistent interpretation of cookie consent” per its press release. The EDPB also “updated the Guidelines on consent in order to ensure a harmonized approach on the conditionality of consent and on the unambiguous indication of wishes.” The Board has not issued the guidance documents, and these are usually issued a few weeks after a plenary session. The EDPB noted, as it usually does, that “[a]ll documents adopted during the EDPB Plenary are subject to the necessary legal, linguistic and formatting checks and will be made available on the EDPB website once these have been completed.”
§ Denmark’s data protection authority, the Datatilsynet, issued a statement in response to decision of the Austrian Data Protection Authority, the Datenschutzbehörde (DSB) (Original Decision (German) or Machine Translation of Decision (English)), whether Google Analytics violate European Union (EU) law in light of Schrems II. The agency stated:
o A decision by the Austrian Data Protection Authority concludes that, in the circumstances, a company could not legally use Google Analytics. In Denmark, the Danish Data Protection Agency will read the decision closely and - on the basis of several forthcoming decisions from other countries - provide further guidance on this to Danish companies and authorities.
o The scientific integrity principles and best practices identified in the report aim to ensure that science is conducted, managed, communicated, and used in ways that preserve its accuracy and objectivity and protect it from suppression, manipulation, and inappropriate influence—including political interference.
o Specifically, the report finds that:
§ While violations of scientific integrity are small in number compared to the magnitude of the Federal Government’s scientific enterprise, they can significantly undermine Federal decision-making and public trust in science.
§ Existing Federal scientific integrity policies are responsive to previous Executive actions but need to be strengthened to better deter inappropriate influence in the conduct, management, communication, and use of science.
§ Supporting scientific integrity requires attention to other policy areas, including greater transparency into research processes and outputs; clear guidelines for data and information that agencies release; and policies that promote safe, equitable workplaces free from harassment and discrimination.
o In 2009, the Obama Administration identified six principles of scientific integrity. To not only restore, but to strengthen the integrity of Federal science beyond the efforts of any previous Administration, the Task Force makes five additional recommendations to guide policymaking and foster a culture of scientific integrity in Federal agencies:
§ All Federal agencies—not just those that fund and conduct scientific research—should develop, implement, and periodically update scientific integrity policies. Protecting scientific integrity is essential for any Federal agency or entity that communicates or makes use of scientific and technical information in decision-making.
§ Scientific integrity policies should apply to all those in Federal agencies who manage, communicate, or use science, not just to scientists and engineers who conduct research, and not just to career employees, but contractors and political appointees as well. All must be trained in scientific integrity and their roles in upholding it.
§ Scientific integrity policies should be modernized to address important, emergent issues of our time. They must advance diversity, equity, inclusion, and accessibility; address new concerns arising from the use of emerging technologies such as artificial intelligence and machine learning; and apply to emerging modes of science, such as citizen science and community-engaged research with Federal involvement.
§ There should be broader dissemination and adoption of good scientific integrity practices across the Federal Government, a task that could be facilitated by more formalized interagency collaboration.
§ There should be widespread training for agency scientists so they can communicate scientific findings effectively to nonscientists in their agencies and to lay audiences, with the idea of helping ensure that policies and actions are based on an accurate understanding of the science.
§ United States (U.S.) Senate Commerce, Science, and Transportation Committee Ranking Member Roger Wicker (R-MS) wrote “a letter urging the Federal Communications Commission (FCC) and National Telecommunications and Information Administration (NTIA) to work cooperatively to resolve spectrum policy issues and update the Memorandum of Understanding (MOU) on spectrum coordination, which has not been updated since 2003” per his press release. He asserted:
o In light of recent disputes over spectrum allocations, it is more important than ever that the FCC and NTIA work together to promote spectrum policy that best serves the dual goals of furthering commercial innovation and enabling the mission-critical operations of federal agencies. NTIA’s statutory role as the voice of the federal agencies regarding spectrum in proceedings at the FCC requires that the Administrator work closely with the experts at impacted agencies to develop and communicate a cohesive executive branch policy position. In addition, as directed by Congress, the FCC must account for the views of various stakeholders, including NTIA’s representation of federal agencies, when formulating service rules for spectrum frequencies.
o This relationship can be strengthened through an update of the MOU between the FCC and NTIA, which details the roles and responsibilities of each agency. This MOU has not been updated since 2003 and does not appropriately account for the dramatic changes in technology in the past 20 years. Last year, I introduced bipartisan legislation, the Improving Spectrum Coordination Act of 2021, which would require the agencies periodically to update the MOU and clearly outline procedures for addressing technical, procedural, and policy questions. Although this legislation has not yet been signed into law, I urge both of you to work together to accomplish the objectives it lays out, resulting in a more predictable and certain spectrum policy environment for all users, federal and non-federal.
§ The United States (U.S.) National Institute of Standards and Technology (NIST) updated its guidance on Bluetooth security, Special Publication 800-121, Revision 2, that is binding on civilian federal agencies in many cases and is intended to aid national security agencies and private sector entities.
§ United States (U.S.) House Energy and Commerce Committee Ranking Member Cathy McMorris Rodgers (R-WA) and Communications and Technology Subcommittee Ranking Member Bob Latta (R-OH) wrote Committee Chair Frank Pallone Jr. (D-NJ) and Communications and Subcommittee Chair Mike Doyle (D-PA) calling on them to “hold an oversight hearing to review ongoing National Telecommunications and Information Administration (NTIA) activities and programs.” Rodgers and Latta asserted:
o The Consolidated Appropriations Act of 2021 provided over $1.5 billion dollars in funding for three broadband pilot programs and codified the Office of Internet Connectivity and Growth, which was recently established at the agency. This office will be critical in tracking the construction, use of, and access to any broadband infrastructure built using federal support, and coordinating broadband funding programs across federal agencies to ensure federal funds are spent efficiently and in a non-duplicative manner. Given the new programs established across the federal government that provide hundreds of billions of dollars that can be used to support broadband access—including at the U.S. Department of Agriculture, the U.S. Department of the Treasury, the U.S. Department of Education, and the Federal Communications Commission—it is imperative that we understand how NTIA plans to track and coordinate these programs effectively.
o “In addition, NTIA’s role managing federal spectrum and representing U.S. interests abroad is as important now as ever. We continue to see spectrum disputes between federal agencies and commercial industry arise. These decisions will only become more difficult as we work to make the United States a leader in next-generation technologies. Congress tasked NTIA to establish a spectrum information technology modernization plan to improve these spectrum management activities, and we need to hear from the Biden Administration about its progress on implementation.
§ The United States (U.S.) Department of Commerce is seeking “qualified nominations for a new Internet of Things Advisory Board to advise the recently established Internet of Things Federal Working Group.” In the agency’s Federal Register notice, it explained:
o The Secretary of Commerce (Secretary) established the Internet of Things Advisory Board (IoTAB) in accordance with the requirements of 9204(b)(5) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283), and in accordance with the Federal Advisory Committee Act, as amended (FACA), 5 U.S.C. App. The The IoTAB shall submit to the IoTFWG a report that includes any findings or recommendations…
§ The Office of the Australian Information Commissioner (OAIC) submitted its views on the Attorney General’s Department’s Privacy Act Review Discussion Paper “[a]s part of [the department’s] review of the Privacy Act 1988.” The Attorney General was also holding a simultaneous “consultation on the exposure draft of the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021 (Online Privacy Bill).” The OAIC provided this overview of its recommendations:
§ The United States (U.S.) Department of Health and Human Services’ (HHS) Office of the National Coordinator for Health Information Technology (ONC) and “its Recognized Coordinating Entity (RCE), The Sequoia Project, Inc., today announced the publication of the Trusted Exchange Framework and the Common Agreement (TEFCA).” These entities stated:
o The 21st Century Cures Act, passed in 2016, calls for the development of a trusted exchange framework and a common agreement. The Trusted Exchange Framework is a set of non-binding but foundational principles for health information exchange, and the Common Agreement is a contract that advances those principles. The Common Agreement establishes the technical infrastructure model and governing approach for different health information networks and their users to securely share clinical information with each other – all under commonly agreed-to rules-of-the-road.
o The Common Agreement supports multiple exchange purposes critical to improving health care and has the potential to benefit a wide variety of health care entities. This flexible structure allows stakeholders—such as health information networks, ambulatory practices, hospitals, health centers, federal government agencies, public health agencies, and payers—to benefit from TEFCA through improved access to health information. Individuals will also be able to benefit from TEFCA and seek access to their health information through entities that offer individual access services.
o Also available today is the TEFCA Health Level Seven (HL7®) Fast Healthcare Interoperability Resource (FHIR®) Roadmap (TEFCA FHIR Roadmap), which outlines how TEFCA will accelerate the adoption of FHIR-based exchange across the industry.
§ The Norwegian Data Protection Authority, the Datatilsynet, announced that it “will carry out audits in both the private and public sectors.” The agency stated that “[k]ey areas within the Personal Data Act with a regulation will then be controlled.” The Datatilsynet stated:
o Areas we will look at will be compliance with the privacy principles, built-in privacy, processing responsibility, safeguarding the data subject's rights, whether a privacy representative has been established and his place in the organization, as well as controlling the companies' management system for privacy and information security. We will also conduct some audits of algorithms in solutions and systems that use artificial intelligence.
§ “Comcast trying to “torpedo” Biden FCC pick Gigi Sohn, advocacy group says” By Jon Brodkin — Ars Technica. Comcast's hiring of a new lobbyist is part of an attempt to "torpedo" President Joe Biden's nomination of Gigi Sohn to the Federal Communications Commission, advocacy group Free Press alleged yesterday. "Comcast just hired a lobbying firm to try to torpedo Gigi Sohn's nomination to the FCC. The company clearly knows that Sohn will work for people, not corporations," Free Press wrote in an email to members. The email asked people to call Commerce Committee Chair Sen. Maria Cantwell (D–Wash.) to urge a vote on Sohn's nomination by the end of January.
§ “Cambodia’s Internet May Soon Be Like China’s: State-Controlled” By Charles McDermid — The New York Times. The day Kea Sokun was arrested in Cambodia, four men in plainclothes showed up at his photography shop near Angkor Wat and carted him off to the police station. Mr. Kea Sokun, who is also a popular rapper, had released two songs on YouTube, and the men said they needed to know why he’d written them.
§ “Israel police uses NSO's Pegasus to spy on citizens” By Tomer Ganon — Calcalist. Israel police uses NSO’s Pegasus spyware to remotely hack phones of Israeli citizens, control them and extract information from them, Calcalist has revealed. Among those who had their phones broken into by police are mayors, leaders of political protests against former Prime Minister Benjamin Netanyahu, former governmental employees, and a person close to a senior politician. Calcalist learned that the hacking wasn’t done under court supervision, and police didn’t request a search or bugging warrant to conduct the surveillance. There is also no supervision on the data being collected, the way police use it, and how it distributes it to other investigative agencies, like the Israel Securities Authority and the Tax Authority.
§ “Big Tech back on the hook in French copyright spat” By Laura Kayali — Politico EU. France's years-long copyright dispute is heating up again. After a détente of sorts before the holiday break, tensions have risen again between U.S. tech giants and the press industry over payment for news. And following months of technical discussions in the corridors of the country's competition authority, the spat has taken a political turn. French magazines have launched a fresh offensive against Google to get them to sign licensing deals — and the French president has their back.
§ “Google, Amazon, Meta and Microsoft Weave a Fiber-Optic Web of Power” By Christopher Mims — The Wall Street Journal. To say that Big Tech controls the internet might seem like an exaggeration. Increasingly, in at least one sense, it’s literally true. The internet can seem intangible, a post-physical environment where things like viral posts, virtual goods and metaverse concerts just sort of happen. But creating that illusion requires a truly gargantuan—and quickly-growing—web of physical connections. Fiber-optic cable, which carries 95% of the world’s international internet traffic, links up pretty much all of the world’s data centers, those vast server warehouses where the computing happens that transforms all those 1s and 0s into our experience of the internet.
§ “Biden administration looking to coordinate federal investment in critical tech” By Dave Nyczepir — cyberscoop. The Biden administration wants to develop a strategic industrial policy to coordinate federal programs and investments in critical technology sectors over the next 10 to 15 years, according to a senior policy advisor at the Department of Commerce. Sree Ramaswamy said the administration intends to pick a handful of technologies like semiconductors to fast-track, but a long-term coordination plan is needed around more critical industries and supply chains that have yet to be named.
§ “SpaceX abandons Starlink plan that Amazon objected to, but fight isn’t over” By Jon Brodkin — Ars Technica. SpaceX has abandoned a Starlink plan that Amazon objected to during a high-profile battle at the Federal Communications Commission last year and wants to launch its second-generation broadband satellites starting in March. But the dispute isn't over, as Amazon says that SpaceX's latest filing "raises a number of issues that call for analysis and a potential response" and asked the FCC for a month-long delay before comments are due.
§ “Google’s $114 Million Fine Backed by France’s Top Court” By Gaspard Sebag and Stephanie Bodoni — Bloomberg. Google’s bid to overturn a 100 million-euro ($114 million) French fine hit a snag after an aide to the nation’s top court backed accusations against the search engine over its cookies policy. The Alphabet Inc. unit has been embroiled in a court fight over the then-record fine in 2020 for targeting users with cookies without their consent and failing to offer a simple way to reject the tracking devices. Google was hit with a new record 150 million-euro penalty last week for still not allowing users an easy way out of its cookies.
§ “Medevac Helicopter Flights Could Be Grounded by New 5G Rollout” By Alan Levin — Bloomberg. The critically ill newborn baby was whisked by helicopter Saturday from rural Silverton, Oregon, to a children’s hospital in Portland, the kind of life-saving transport Life Flight Network makes thousands of times a year. But starting Jan. 19, when new 5G wireless service kicks off across the country, such routine air-ambulance missions may no longer be permitted.
§ “The 3G Shutdown Is Coming—Here’s How That Affects You” By Joanna Stern — The Wall Street Journal. The history of the world is divided into two eras: B3G (Before 3G): During this time, cellphones were primarily used for talking and texting. Sure, you could load a website but you could also snowshoe from New York to Alaska in the same amount of time. CBE (Cellular Broadband Era): Once the heavens opened and the cell towers ushered in 3G, we got it all: speedy mobile web browsing, apps that let you summon a car (or burrito) to your door and an endless stream of selfies. And it only got faster as time went on.
§ “The FAA’s 5G freakout raises a big red flag — about its competence” By David von Drehle — The Washington Post. Have you ever heard of “5G”? It’s not a trick question. Yes, 5G — the long-promised next step in cellular technology. The same 5G you could avoid hearing about only by moving to a hut in the Himalayas. And turning off your phone.
§ “Apple Says Senate’s Big-Tech Legislation Would Weaken Its User-Privacy Push” By Tim Higgins — The Wall Street Journal. Apple Inc. is warning that Senate legislation aimed at reining in large tech companies would weaken a privacy-protection tool that it rolled out last year and has already stung Facebook, Snapchat and other online-ad businesses reliant on user data to target messages.
§ 25 January
o The European Union’s Parliament’s Special Committee on Foreign Interference in all Democratic Processes in the European Union, including Disinformation and Subcommittee on Security and Defence “will engage with the NATO StratCom Centre of Excellence to discuss about the latest issues regarding Russia's Strategy in cyberspace, China as a narrative challenge for NATO Member States and the emerging issues in the digital domain.”
§ 26 January
o The European Union’s Parliament’s Committee on Constitutional Affairs will hold a hearing titled “EU public sphere: European political parties' role & challenges of social platforms.”
§ 27 January
o The United States (U.S.) Federal Communications Commission (FCC) will hold an open meeting with this agenda:
§ Empowering Broadband Consumers Through Transparency. The Commission will consider a Notice of Proposed Rulemaking that would propose to require that broadband internet access service providers display, at the point of sale, labels to disclose to consumers certain information about their prices, introductory rates, data allowances, broadband speeds, and management practices, among other things. (CG Docket No. 22-2)
§ Connecting Tribal Libraries. The Commission will consider a Report and Order that would amend the definition of library in the Commission’s rules to clarify that Tribal libraries are eligible for support through the E-Rate Program. (CC Docket No. 02-6)
§ Updating Outmoded Political Programming and Record-Keeping Rules. The Commission will consider a Report and Order to update outmoded political programming rules. (MB Docket No. 21-293)
§ Facilitating Better Use of ‘White Space’ Spectrum. The Commission will consider a Second Order on Reconsideration and Order resolving pending issues associated with white space devices and the white spaces databases, enabling unlicensed white space devices to continue operating efficiently while protecting other spectrum users. (ET Docket Nos. 04-186, 14-165)
§ Updating Equipment Authorization Rules. The Commission will consider a Notice of Proposed Rulemaking that would propose to update existing equipment authorization rules to reflect more recent versions of the technical standards that are incorporated by reference and incorporate by reference a new technical standard so that our equipment authorization system can continue to keep pace with technology developments. (ET Docket Nos. 21-363, 19-48)
§ Restricted Adjudicatory Matter. The Commission will consider a restricted adjudicatory matter.
§ National Security Matter. The Commission will consider a national security matter.
§ Enforcement Bureau Action. The Commission will consider an enforcement action.
o The European Union’s Parliament’s Subcommittee on Security and Defence and Committee on Foreign Affairs will hold a joint hearing on “The EU's Indo-Pacific Strategy: global partnership for peace and security.”
§ 22 February
o The European Data Protection Board will hold a plenary meeting.
§ 16-17 June
o The European Data Protection Supervisor will hold a conference titled “The future of data protection: effective enforcement in the digital world.”