Digital Updates – June

On June 27, the News Media Alliance released a statement calling for Google to rethink its planned changes to incognito mode in the Chrome browser. The statement comes following multiple reports that the next version of Google Chrome will remove the ability to detect when a reader is in incognito mode. This change would make it harder for news publishers to gain valuable subscribers in addition to limiting readers’ access to high-quality journalism. The statement notes the importance of finding ways to protect consumer privacy while also preserving news publishers’ ability to charge for access to their news products. Read the statement here.

On June 26, the House Committee on Homeland Security held a hearing on the role of online platforms in spreading terrorism content and misinformation. The hearing, titled “Examining Social Media Companies’ Efforts to Counter Online Terror Content and Misinformation,” featured witnesses from Facebook, Google, Twitter, and New York Law School. The discussion focused mainly on the online platforms’ efforts to remove and prevent violent content as well as deep fake videos. The platform representatives emphasized their ongoing efforts and indicated that they are a work in progress. Professor Nadine Strossen noted that although the companies are protected by the First Amendment, as private companies they do not have to follow it, stressing instead the importance of media education and the protection of free speech, including harmful speech, online. The hearing came after a hearing by the House Intelligence and Counterterrorism Subcommittee on artificial intelligence and counterterrorism and a Senate Commerce Committee hearing on the use of persuasive technology on online platforms on June 25. Watch the terror content and misinformation hearing here.

On June 26, the House Judiciary Committee held a Copyright Office oversight hearing with the newly appointed Register of Copyrights, Karyn Temple. The hearing was the first Copyright Office oversight hearing since 2014. Following opening remarks by the Committee Chairman Jerrold Nadler (D-NY) and Ranking Member Doug Collins (R-GA), focusing on the importance of the copyright-intensive industries to the U.S. economy and the Copyright Office in facilitating that, the Register gave a brief overview of recent developments at the Copyright Office. The hearing focused mostly on the Music Modernization Act as well as the recently introduced CASE Act that would create an alternative small-claims court for copyright owners. With regards to the Copyright Office modernization, Register Temple discussed the importance of the IT modernization efforts. She also stated that the Office expects to pilot the new recordation and public records systems next year, while the new registration system is currently in user interface development stage. Watch the hearing here.

On June 24, Senators Josh Hawley (R-MO) and Mark Warner (D-VA) introduced a bill that would require online platforms to disclose how they value and monetize user data. The bill, “Designing Accounting Safeguards to Help Broaden Oversight and Regulations on Data (DASHBOARD) Act,” would affect commercial data operators with over 100 million monthly active users. These platforms would be required to disclose the types of consumer data collected and the value of such data (including aggregate value), in addition to providing users with the right to delete data held on them. The bill follows Senator Hawley’s earlier Do Not Track Ad, introduced in May. Read the DASHBOARD Act here.

On June 19, Senator Josh Hawley (R-MO) introduced a bill, “Ending Support for Internet Censorship Act,” that would amend Section 230 of the Communications Decency Act. Adopted in 1996, Section 230 provides online platforms with a broad immunity from civil liability for all third-party content they publish. The law has recently become increasingly controversial due to various issues – ranging from illegal opioid sales to hate speech and election interference – Congress is grappling with that may require amending online platform liability protections. Senator Hawley’s bill would remove liability protections from platforms who fail to prove that they are politically neutral platforms. The bill would require online platforms – with the exception of small and medium-sized companies – to seek a certification from the Federal Trade Commission every two years. Senator Hawley’s bill comes following the inclusion of Section 230 immunities in the recently negotiated United States-Mexico-Canada Agreement (USMCA), which would enshrine such immunities for the first time in an international agreement. Read Senator Hawley’s bill here.

According to news reports, Senator Josh Hawley (R-MO) is planning to introduce a bill to amend Section 230 of the Communications Decency Act later this week. Section 230 provides online platforms with a broad immunity from civil liability for all third-party content they publish – including from claims of defamation, invasion of privacy, and misappropriation. Originally adopted in 1996 to protect startups operating in the nascent online ecosystem, Section 230 has recently become controversial due to its central role in facilitating various online harms, ranging from illegal opioid sales to hate speech and foreign election meddling. At the same time, the recently negotiated United States-Mexico-Canada Agreement (USMCA) would enshrine Section 230 in an international agreement for the first time, making any changes to it domestically more sensitive. Senator Hawley’s proposal would reportedly result in certain tech companies being treated as publishers, thereby making them more responsible for the content they publish. Read more about Senator Hawley’s proposal here.

On June 15, the Alliance filed comments with the Department of Justice (DOJ) regarding its Public Workshop on Competition in Television and Digital Advertising, held in May. The workshop was held to examine the dynamics involved in media advertising and determine what, if any, implications there were for antitrust and merger enforcement issues. The Alliance comments noted that advertising should benefit creators, advertisers and consumers, and that the DOJ look at the intermediary ad tech companies that cause a “bottleneck” in digital advertising, taking in more money and causing more friction between advertisers and publishers. Specifically, the Alliance recommended that the DOJ more closely scrutinize Google and its acquisitions, as it controls a disproportionate amount of the ad tech companies that stand between advertisers and publishers. You can read the Alliance’s full comments here.

On June 12, the Federal Trade Commission (FTC) held the last session of its hearings on Competition and Consumer Protection in the 21st Century. The discussions focused on consumer protection and antitrust enforcement issues as well as optimizing consumer protection remedies. The session also covered error-cost considerations and how those should affect the FTC’s agenda. The panels included Attorneys General from South Dakota, Louisiana, Tennessee, and Nebraska. Other participants included representatives of other Attorneys General, universities, and law firms. Prior to the hearing, the Attorneys General of 43 states filed comments with the FTC, proposing new ideas for merger enforcement in the online space. The comments called for requiring prior approval or notification for future acquisitions and taking non-price effects more into account in merger analysis. The Attorneys General also expressed support for increasing transparency in data collection and sale through legislative means. The FTC’s hearings were launched in September 2018 and consisted of 14 sessions on various topics. The Alliance filed comments with the FTC last August ahead of the first hearing, focusing on the impact of dominant online platforms on news publishers. Read more about the hearings here.

On June 11, the House Antitrust Subcommittee held a hearing on the role of dominant online platforms and the future of the news industry, titled “Online Platforms and Market Power, Part 1: The Free and Diverse Press.” The hearing was the Judiciary Committee’s first in their investigation into big tech antitrust issues. The witnesses included David Chavern (News Media Alliance), Gene Kimmelman (Public Knowledge), Sally Hubbard (Open Markets Institute), Matthew Schruers (CCIA), David Pitofsky (News Corp), and Kevin Riley (Atlanta Journal-Constitution). Most of the witnesses expressed support for the “Journalism Competition and Preservation Act” that would allow news publishers to collectively negotiate with the online platforms. Further, with the exception of CCIA, the witnesses also supported stronger antitrust scrutiny of big tech companies. Alliance President and CEO David Chavern noted the need for a solution for sustainable journalism as the current trends cannot continue, and that failing to take stronger action to protect news publishers across the country would pose a risk to the very fabric of our civic society. Read David’s full written testimony here and watch the full hearing here.

On June 11, the Alliance President and CEO David Chavern will testify in front of the House Subcommittee on Antitrust, Commercial and Administrative Law on the need to protect high-quality journalism through granting news publishers a safe harbor to collectively negotiate with the big tech platforms for a fairer deal. The hearing, “Online Platforms and Market Power, Part 1: The Free and Diverse Press,” is the House Judiciary Committee’s first hearing in their investigation into big tech antitrust issues. In his written testimony, Chavern outlines recent changes in the news industry and the online ecosystem, including the dominant position of the online platforms. The comments also highlight a new study released by the Alliance, showing that Google generated an estimated $4.7 billion in revenue from news content in 2018, and calls on Congress to adopt the recently introduced “Journalism Competition and Preservation Act.” The Act was introduced in the House in April by Antitrust Subcommittee Chairman David Cicilline (D-RI) and Judiciary Committee Ranking Member Doug Collins (R-GA) and in the Senate in June by Senators John Neely Kennedy (R-LA) and Amy Klobuchar (D-MN), Ranking Member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights. Read the Alliance written comments here and watch the hearing live at 2pm here.

On June 10, the Alliance released a study, containing analysis by strategy and economics consulting firm Keystone Strategy, showing that the amount of news in Google search results ranges from 16% of “most searched queries” and up to 40% for “trending queries.”  The study also found that Google generated an estimated $4.7 billion in revenue from news content in 2018. The revenue estimate is conservative, and the actual figure might be higher, as many of the various ways Google benefits from news content are difficult to quantify, including the ad revenue and data Google gets from news sites. In response to criticism of the accuracy of the revenue numbers, Alliance President and CEO David Chavern pointed out that industry has been requesting transparency in Google’s numbers for years, and called on Google to share more accurate revenue data with the publishers and the public. The study comes as the House Judiciary Committee started its investigation into tech antitrust issues with its first hearing on the issue, titled “Online Platforms and Market Power, Part 1: The Free and Diverse Press,” on June 11. Read an executive summary of the Google study here and the full study here.

On June 7, the Alliance filed an amicus brief with the U.S. Court of Appeals for the Fourth Circuit in The Washington Post v. McManus, Jr. The case concerns a Maryland law that would subject news publishers to burdensome recordkeeping and disclosure requirements relating to online political ads. The District Court found the law unconstitutional on First Amendment grounds earlier this year, and the State of Maryland appealed. The amicus brief, joined by 17 other organizations, urges the Fourth Circuit to affirm the lower court’s decision. The brief reasserts that the Online Electioneering Transparency and Accountability Act is an unconstitutional, content-based regulation of free speech that is both over- and underinclusive and subject to strict scrutiny. The submission also notes that upholding the Act would degrade constitutional protections for both the internet as a whole and for news organizations that operate online. Read the amicus brief here.

On June 3, Senators John Kennedy (R-LA), Member of the Senate Judiciary Committee, and Senator Amy Klobuchar (D-MN), Ranking Member of the Subcommittee on Antitrust, Competition Policy and Consumer Rights, introduced S. 1700, the “Journalism Competition and Preservation Act,” in the Senate. The Senate bill is similar to H.R. 2054, introduced in April by Representatives David Cicilline (D-RI) and Doug Collins (R-GA) in the House. The bills would provide news publishers with a time-limited safe harbor to collectively negotiate with the dominant online platforms for a fairer deal. This bipartisan, market-based solution would ensure that news publishers can continue to produce high-quality content for years to come. The Alliance commends Senators Kennedy and Klobuchar for introducing this important bill and looks forward to working with members of both Chambers to pass it swiftly during this Congress. Read the Alliance press release on the Senate bill here and a Roll Call article on the bill here.

On June 3, the Alliance organized a congressional briefing on H.R. 2054, the “Journalism Competition and Preservation Act,” introduced in April by House Antitrust Subcommittee Chairman David Cicilline (D-RI) and the Ranking Member of the House Judiciary Committee, Rep. Doug Collins (R-GA). The briefing, attended by approximately 80 attendees, featured remarks by Reps. Cicilline and Collins as well as Axios co-founder Mike Allen and reporter Jonathan Swan. Their remarks were followed by a panel of industry and legal experts, including representatives from News Corp, USA TODAY, Daily Caller, and Paul Weiss. The panel examined the impact of dominant platforms on news publishers and how the bill would help address the imbalance and ensure the sustainability of high-quality journalism in the future. The panel was moderated by the Alliance President and CEO David Chavern. During the briefing, the Alliance also released a video supporting the bill. Watch the full video here.

On June 3, the House Judiciary Committee announced that it was launching an antitrust investigation of the tech industry, including an evaluation of the existing antitrust laws and enforcement. The investigation will focus on issues such as the online platforms’ impact on local journalism, consumer privacy, and competition. House Antitrust Subcommittee Chairman David Cicilline (D-RI) said that the Committee expects to hear from various tech executives during the investigation. The Committee’s investigation comes shortly after the Federal Trade Commission (FTC) and the Department of Justice (DOJ) indicated that they are placing the dominant online platforms under increased scrutiny, with the DOJ looking into Google and Apple, and the FTC being responsible for the oversight of Facebook and Amazon. The FTC is also expected to announce the conclusion of its investigation into Facebook’s privacy violations in the near future. Read more here.