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On March 20, the News Media Alliance joined over 60 business groups, including the Motion Picture Association and the Association of National Advertisers, in asking the Attorney General of the State of California, Xavier Becerra, to postpone the enforcement of the California Consumer Privacy Act (CCPA). The CCPA was adopted in 2018 and provides residents of California with strong privacy protections. While the law came into effect in January 2020, the Attorney General is required to promulgate implementing regulations prior to the planned enforcement start date of July 1. The letter calls for the Attorney General to delay this deadline by six months due to the ongoing COVID-19 pandemic that places considerable stress on the businesses that must comply with the new law. According to reports, the Attorney General is currently planning on sticking to the original schedule. Read more here.
On March 17, the Washington Post reported that the government is in discussions with the tech industry regarding the use of user location data to aid in slowing the spread of COVID-19. The news follows earlier reports of the administration reportedly asking the big tech companies to assist governmental efforts to battle the virus. Any potential partnerships between the government and big tech would be sensitive as the tech industry has been under increased scrutiny for its handling of user privacy and as Congress has not agreed on a federal privacy legislation. On March 18, five Democratic Senators, including Robert Menendez (D-NJ), Sherrod Brown (D-OH), Richard Blumenthal (D-CT), Kamala Harris (D-CA), and Cory Booker (D-NJ), sent letters to Vice President Mike Pence and Google CEO Sundar Pichai asking whether user privacy considerations had been taken adequately into account when developing the Google-affiliated pilot screening website launched on Sunday. Read the letter here.
On March 17, Representative David Cicilline (D-RI), Chair of the House Antitrust Subcommittee, held a roundtable discussion with stakeholders in Rhode Island on competition in the digital marketplace. The event, hosted virtually due to the COVID-19 pandemic, was aimed at soliciting the views of local businesses, innovators, and thought leaders about the issue. Representatives of The Boston Globe and The Providence Journal participated in the roundtable, highlighting how the dominant platforms affect the news industry. They also expressed support for the Journalism Competition and Preservation Act that would grant news publishers a temporary safe harbor to come together and negotiate collectively with the platforms. Rep. Cicilline has been leading a congressional antitrust investigation into market power online, including whether the dominant platforms have engaged in anti-competitive conduct, that is expected to wrap up soon. The subcommittee has held five hearings and sent multiple requests of information to the tech platforms as part of the investigation. Read more about the subcommittee’s investigation here.
On March 16, Dr. Johnny Ryan of Brave Software, a California-based developer of a privacy-focused web browser, filed a complaint with the Irish Data Protection Commission regarding Google’s use of consumer data for undisclosed purposes across its business. The complaint argues that Google fails to adequately ring-fence the personal data it collects for its various services, instead allowing other parts of the company to use the data without making this clear to users. Such use would violate Article 5(1)b of the European Union’s General Data Protection Regulation (GDPR), which establishes a “purpose limitation” principle. Specifically, GDPR allows user data to be collected for “specified, explicit and legitimate” purposes but forbids the use of such data “in a manner that is incompatible with those purposes.” The complaint follows Dr. Ryan’s attempts to find out how Google uses his personal data. Properly enforced, GDPR would allow users to limit how Google uses their personal data, in addition to increasing competition in the digital marketplace. Read more about the complaint here.
On March 13, the U.S. Copyright Office shared a summary of its pandemic plan with Members of Congress, noting that the Office aims to continue providing essential services during the ongoing COVID-19 pandemic. These services include administering the registration and recordation systems, handling mandatory deposits, and conducting regulatory activities. According to the summary, many Copyright Office staff members will work remotely, although some will remain on-site, and the registration examination of digital applications will continue as normal. Paper applications and physical deposits may experience delays. Additionally, the remote working arrangements should not have any effect on the Copyright Office modernization efforts.
Data Privacy Bill Fails in Washington; New York Legislators Consider a Comprehensive Bill Requiring Opt-In
On March 12, Washington State Senator Reuven Carlyle issued a statement indicating that the state House and Senate had failed to reach a compromise on a proposed consumer privacy bill, the Washington Privacy Act. The Act would have created broad consumer data protections similar to those established by the California Consumer Privacy Act (CCPA) and the EU’s General Data Protection Regulation (GDPR). The Washington House and Senate disagreed about whether the Act should include a private right of action. The bill’s failure marks the second time that the bill has failed to pass the legislature. Meanwhile, New York State is considering a data privacy bill, A8526/S5642, which would go beyond CCPA and GDPR by requiring affirmative opt-in consent, creating a private right of action, and establishing a fiduciary duty of care, loyalty, and confidentiality that would require businesses to put consumers’ privacy rights ahead of their own interests. Read more about the Washington Privacy Act’s failure here.
On February 26, the Ninth Circuit effectively held that any challenges to a digital platform’s censorship or ad-blocking on First Amendment grounds will fail. In a unanimous opinion, the court found that YouTube is not a public forum or government actor. PragerU argued that the expansive reach of the internet and selective censorship qualified YouTube as a moderator of an effective town square, subject to First Amendment scrutiny. The court rejected this argument to find that online platforms do not require First Amendment protections, claiming that the new digital age has not changed legal principles. Read more here.
On February 24, House Antitrust Subcommittee Chairman David Cicilline (D-RI) told reporters he will propose a bill to limit Section 230 immunity for digital platforms that knowingly publish false political ads. Cicilline aims for the bill to address the “emergency problem” of false political ads. His staff is still deciding whether to remove Section 230 immunity for all political ads or just false political ads. Cicilline said that big tech companies profiting from “demonstrably false advertising” will directly affect whether citizens will have truthful information when deciding who to vote for. He has been a critic of Section 230, demanding action from Congress if the FTC fails to act. Cicilline plans to introduce the bill in a month. Read more here.
On February 21, The Wall Street Journal reported that Google is not surrendering emails, texts, and other documents for the state attorneys general investigation into possible anticompetitive practices. A Google spokesperson claims the company has complied with the investigation but raised concerns about the investigation being “irregular.” The spokesperson alleged that the investigation has included “unusual arrangements with advisers who work with our competitors and vocal complainants.” Texas Attorney General Ken Paxton remains suspicious of Google’s behavior, saying they are not acting “clean.” Read more here.
On February 19, the DOJ hosted a workshop featuring three panels about Section 230. Attorney General William Barr opened the event by expressing concern about Section 230, specifically digital platforms’ lack of cooperation with law enforcement. The panels discussed litigating Section 230, addressing illicit activity online, and alternatives to Section 230. The panelists included testimony from News Media Alliance’s President and CEO David Chavern, Patrick Carome who argued the Zeran case, and other experts in the field. Chavern stated that commercial decisions of the platforms algorithms that choose what content readers see and don’t see should carry with it responsibility for those decisions. The panelists divided over Section 230’s long and short term effects, with one side arguing for platform accountability and the other for self-regulation. Read more here.
On February 19, the News Media Alliance filed an amicus brief with the Supreme Court in support of Oracle in the Google v. Oracle case. The case concerns Google’s unauthorized copying of parts of Oracle’s code when developing applications for Android. The Supreme Court will hear the case in March and wants the parties to address two questions: whether the code is copyrightable, and whether Google’s use constituted fair use. The lower U.S. Court of Appeals for the Federal Circuit ruled in favor of Oracle on both of these questions, and the Supreme Court accepted Google’s appeal in November. The Alliance amicus brief focuses solely on the fair use question, challenging Google’s argument that its use of Oracle’s code was fair use under the current statutory standard. The brief contrasts Google’s actions in this case to their widespread and unauthorized use of news content without compensation for their own commercial purposes. Read the Alliance statement here and the full brief here.
Following the passage of the European Union’s Copyright Directive last year, Google is now in discussions with French news publishers on paying for their news content, according to news reports. Article 15 of the EU Copyright Directive created a so-called “Publishers’ Right” that gives news publishers the right to protect their content online. France became the first country to implement the Publishers’ Right in July, after which Google indicated that it would refuse to pay for news content in France and would simply display headlines in its search results unless publishers waived their rights. A competition claim was filed against Google for using its market dominance to evade the law, and a ruling is expected to come in March. According to the Financial Times, Google is now negotiating with select French publishers, including Le Monde and Figaro, about direct content payments. It is unclear what form the payments would take. Read more here.
On February 13, Senator Lindsey Graham’s (R-SC) draft bill, which would predicate interactive computer services’ Section 230 immunity on compliance with “best practices” in the proposed Act and impose liability for tech platforms that allow dissemination of child sexual abuse material (CSAM), circulated. The EARN IT Act of 2019 would establish a Commission that would seek to prevent the exploitation of children online by submitting recommended best practices to the attorney general (AG). The AG reviews and can modify the best practices before publishing them to the Federal Register, under Section 4(b) of the Act. Within one year of posting these best practices, interactive computer services are required under Section 4(c) to submit a written certification to the AG that they have reviewed and implemented the best practices. If the AG has any reason to believe the interactive computer service is not complying with best practices it can order an investigation, imposing significantly more scrutiny on the platforms previous blanket immunity under Section 230. Read more here.
On February 12, the UK’s Department for Digital, Culture, Media & Sport announced that it is “minded” to grant the Office of Communications (Ofcom) the power to regulate online platforms. The announcement was included in the Department’s initial response to the Online Harms White Paper released last April. The aim is to make the internet a safer place by protecting children and vulnerable people, in addition to increasing user trust in technology. According to the government’s announcement, Ofcom will be responsible for protecting internet users from harmful and illegal content, particularly terrorist and child abuse content. The regulations will only apply to companies that share user-generated content. Currently, Ofcom is responsible for regulating the broadcasting and telecoms industries. The Department will publish a full response to the White Paper later in the spring. Read more here.
On February 11, the Federal Trade Commission (FTC) announced that it will re-examine past acquisitions of small and nascent firms by big tech companies, including Google, Amazon, Facebook, Apple, Microsoft, and Alphabet. The Special Orders, issued under Section 6(b), require the identified companies to provide information on acquisition transactions that took place in the last decade. Section 6(b) allows the FTC to request information for studies that do not have a specific law enforcement purpose in order to evaluate the companies’ acquisition activities and to evaluate whether they are making anticompetitive acquisitions that fall below reporting thresholds. The announcement came following the conclusion of the hearings on Competition and Consumer Protection in the 21st Century, held between September 2018 and June 2019. The Commission approved the issuance of the Special Orders unanimously. Read more here.
On February 6, 2020, the House Steering Committee selected Rep. Jim Jordan (R-OH) to replace Rep. Doug Collins (R-GA) as ranking member of the House Judiciary Committee, as Collins steps down to run for Georgia’s Senate seat. Rep. Collins and House Antitrust Chairman David Cicilline (D-RI) remain lead sponsors for H.R. 2054, the Journalism Competition and Preservation Act. The legislation is still expected to go through regular order in the House this year, according to statements made by the Chairman, while the Senate version has gained co-sponsors and the Alliance supports regular order – a hearing and markup – in the Senate, as well. Lawmakers are aware of the urgency, and the importance of ensuring passage of this legislation.
On January 29, President Trump signed the newly negotiated United States-Mexico-Canada Agreement (USMCA) following the Senate’s adoption of the agreement on January 16 in an 89-10 vote and the House’s passage in December by a 385-41 vote. The agreement, replacing the North American Free Trade Agreement (NAFTA), was finalized between the three countries over a year ago but faced significant challenges due to concerns by the House Democrats who insisted on changes in some of the key provisions prior to passage. Despite last-minute efforts by Speaker Nancy Pelosi (D-CA), the final agreement still includes provisions similar to Section 230 of the Communications Decency Act that establishes broad liability immunities for online platforms for third-party content they publish. USMCA marks the first time such immunities are enshrined in a trade agreement. Before taking effect, USMCA must still be approved by the Canadian Parliament. Read more here.
On January 14, 2020, Google announced that it intends to phase out its support of third-party cookies within the next two years as part of its Privacy Sandbox initiative. These changes will take place within Google’s Chrome browser, which is the dominant browser at 69% global market share, and could significantly impact the subscription and advertising revenue of news publishers. This change follows indications from Google that it would continue taking privacy-related actions. For example, Google’s changes to the Chrome browser’s incognito mode in July 2019 were said to be intended to protect consumer privacy, but instead the changes to the browser facilitated paywall circumvention and did nothing more to protect users’ privacy than before the changes were made. Google has stated that it plans to work with publishers, advertisers, and other relevant stakeholders to determine how the new policies will be developed and implemented. The Alliance is engaged in good faith efforts with Google to ensure any new policies benefit news publishers and to learn how the policies will impact news publishers’ business.
The Alliance submitted comments on January 10, 2020, to the U.S. Patent and Trademark Office (USTPO) regarding their request for comments on the impact of artificial intelligence (AI) on the protection of intellectual property. The comments focused on USTPO’s question regarding the ingestion of large volumes of copyrighted material for AI training purposes, and whether such use constitutes fair use and is adequately addressed by existing statutory language and case law. The Alliance comments noted the existential threat to the news industry posed by the unlicensed use of news content for AI training purposes, and argued that while the current case law provides protections for news content against such use, stronger enforcement is needed. The comments also emphasized the importance of fair use analysis, including the market effect unauthorized copying has on news publishers. While the current legal framework, properly understood and enforced, should provide adequate protections for news content, legislative solutions may be useful if that is not the case. Read the full comments here.