Digital Updates – March

Nearly 65 percent of all Google searches end without a user going to a different website, according to a report by Rand Fishkin. The Alliance’s White Paper further detailed how Google creates a walled garden by using its market dominant position to diminish the chances that users will visit other news websites. Google’s market dominance and anti-competitive practices have come under increasing scrutiny, with multiple lawsuits ongoing against them. On March 24, Google released a blog attempting to defend its practices. Google claims that it “sends more traffic to the open web every year,” an attempt to justify its increasing efforts to keep users (and the user data it stockpiles) within its walls. Read more here.

On March 12, the House Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law held a hearing about “Saving the Free and Diverse Press” by reviving competition in the marketplace. At the hearing, Rep. David Cicilline (D-RI) introduced the “Journalism Competition and Preservation Act,” which would enable news publishers to collectively bargain with dominant digital platforms in order to receive fair compensation, specifically benefitting small, local publishers. Alliance CEO David Chavern testified that Google and Facebook effectively regulate the news industry because they determine who the content reaches, collect date, and control the advertising markets. Because of this, news publishers urgently need a solution to correct this power imbalance and negotiate for fair compensation for their content. Though Google claims to have a deep commitment to news, news publishers have more internet traffic than ever and are even bearing higher costs to produce high quality journalism, yet their revenues are plummeting at the hands of Google and Facebook. There was bi-partisan agreement local news is vital for both American democracy and civilization. The “Journalism Competition and Preservation Act” would give publishers the bargaining power they need to survive in an ecosystem that is currently dominated by two companies. Read more here. 

On March 5, the News Media Alliance submitted comments to Senator Thom Tillis (R-NC) regarding his proposed Digital Copyright Act of 2021 (DCA) discussion draft, published in December 2020. The discussion draft includes numerous revisions to Sections 512 and 1201 of the Copyright Act, in addition to various other proposed changes, including provisions concerning registration of website content and directing the Copyright Office to conduct a study on creating an ancillary copyright for news publishers. The Alliance’s comments expressed support for these two provisions of particular interest to news publishers, in addition to suggesting ways to make the other proposed changes work better for news publishers. The Alliance looks forward to working with Sen. Tillis and other congressional leaders to modernize U.S. copyright laws in the coming years.

On March 5, the Maryland Senate passed a bill that would exempt news publishers from the state’s recently adopted digital advertising tax. Introduced in early-February, SB 787 aims to prevent services subject to the tax from passing the costs to customers, in addition to protecting news publishers and broadcasters. The bill’s definition of “news media entity” includes all news organizations engaging in “newsgathering, reporting, or publishing articles or commentary about news, current events, culture, or other matters of public interest” but excludes aggregators and republishers of third-party content. Maryland became the first state in the United States to adopt a digital advertising tax in February with companies subject to advertising taxes of up to 10 percent. Other states are currently considering similar measures. The Maryland amendment bill is now in the State House, which is expected to hold a hearing on it on March 25. Read more about the bill here (subscription required) and the full text of the bill here.

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.

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.