September 2022 U.S. Tech Policy Roundup

Kennedy Patlan, Ake Kankirawatana, and Rachel Lau are associates at Freedman Consulting, LLC, where they work with leading public interest foundations and nonprofits on technology policy issues.

September marked a flurry of tech policy happenings. The Senate confirmed Arati Prabhakar as the new director of the White House’s Office of Science and Technology Policy (OSTP). Representative Anna Eshoo (D-CA) sent a letter to the National Security Advisor and the OSTP expressing concerns regarding “the recent unsafe release of the Stable Diffusion model by Stability AI,” whose lack of technical constraints allows users to create violent and pornographic images (including pornographic deepfakes). Communications platform Signal selected Meredith Whitaker, a recent adviser to FTC Chair Lina Khan, to be the organization’s first president. At the state level, the Texas 5th Circuit Court of Appeals decided to upheld a law that bans social media companies from removing political content or from censoring user viewpoints, while Florida’s attorney general used the Texas decision to petition the Supreme Court to weigh in on a similar law that a lower court blocked.

Following various stalls and setbacks, two antitrust bills made progress in Congress this month: the House passed the Merger Filing Fee Modernization Act (H.R. 3843), and the Senate Judiciary Committee approved the Journalism Competition and Preservation Act (S.673). Meanwhile, advocates continue to push for a Senate floor vote on the American Innovation and Choice Online Act (AICOA, S. 2992). Also, privacy, particularly regarding government surveillance, continues to be a relevant topic of concern for lawmakers and journalists. Read on to learn more about September U.S. tech policy highlights from the White House, the halls of Congress, and more.

The below analysis is based on techpolicytracker.org, where we maintain a comprehensive database of legislation and other public policy proposals related to platforms, artificial intelligence, and relevant tech policy issues.

Antitrust Legislation Passes the House, May Become Law

• Summary: This month, the House passed the Merger Filing Fee Modernization Act (H.R. 3843) 242-184 after the House Rules Committee consolidated three competition-related proposals. The bill would raise filing fees on large mergers to generate funding that can be appropriated for antitrust enforcement. It also includes provisions from two other bills (the Foreign Merger Subsidy Disclosure Act (H.R. 5639) and the State Antitrust Enforcement Venue Act (H.R. 3460)) to require merging companies to disclose subsidies by foreign adversaries to federal agencies and to give state attorneys general more control over which court will hear their antitrust cases. A version of H.R. 3843 has already passed the Senate, but a path for Senate consideration, resolving inter-chamber differences, and to the president’s desk has not yet been announced. Also in the antitrust policy space, the Senate Judiciary Committee approved the Journalism Competition and Preservation Act (S.673), sending it to the full Senate for a potential future vote. More broadly, as the House and Senate recess ahead of the midterm elections, antitrust policy stakeholders continue to watch for whether Senate Majority Leader Schumer (D-NY) will schedule a floor vote for the American Innovation and Choice Online Act (AICOA, S. 2992). Though AICOA and other pro-competition bills have bipartisan support, analysts and policymakers alike expect these bills to be less likely to pass in a Republican-controlled House. Representative Ken Buck (R-CO) told the Washington Post that the antitrust bills “will not move forward under Republican leadership,” and that he believes “the tech companies are trying to run out the clock.”
• Stakeholder Response: Ahead of the House’s passage of the Merger Filing Fee Modernization Act (H.R. 3843), more than 35 civil society groups and advocacy organizations sent a letter to House Speaker Nancy Pelosi (D-CA) and House Leader McCarthy (R-CA) in favor of the bill. Some Democrats objected to the venue-selection provisions, while some Republicans claimed the higher merger fees would be used to support abusive FTC and Justice Department behavior. Following H.R. 3843’s bipartisan passage in the House, public interest advocates like Accountable Tech, American Economic Liberties Project, and the Tech Oversight Project celebrated the vote. Additionally, while some insiders do not think an AICOA vote is imminent, smaller tech organizations like DuckDuckGo and Mozilla wrote to members of the U.S. House and Senate, urging them to bring the bill to a vote. However, the bill continues to face opposition from groups such as the U.S. Chamber of Commerce.
• What We’re Reading: TIME outlined why antitrust reform against Big Tech is still waiting to happen. In late September, the Washington Post updated readers on the latest antitrust back and forth between policymakers. Bloomberg discussed what antitrust supporters plan to do next if bills do not come to a vote before midterms. Advocacy groups are also tapping into TikTok talent to promote antitrust reform. Meanwhile, Big Tech groups such as Amazon, Apple, and Meta continue to fight against antitrust legislation, spending a record $95 million on lobbying efforts.

White House Launches Platform Accountability Principles

• Summary: The White House announced six “Principles for Enhancing Competition and Tech Platform Accountability'' to guide reform following a listening session on September 8 with field experts and practitioners to discuss the harms that tech platforms cause and the need for greater accountability. The principles include promoting technology sector competition, adopting robust federal privacy protections, imposing more stringent protections for children’s privacy online, rescinding special legal protections for platforms through Section 230 reform, increasing transparency around platforms’ algorithms and content moderation decisions, and ending discriminatory algorithmic decision-making. Several senior White House officials, D.C. Attorney General Karl Racine, and industry and nonprofit leaders attended the session and participants discussed a broad range of issues surrounding platform accountability.
• Stakeholder Response: The proposal to reform Section 230 attracted the most attention this month. House Energy and Commerce Consumer Protection and Commerce Subcommittee Chair Rep. Jan Schakowsky (D-IL) lauded Biden’s calls for “fundamental reforms” to Section 230, while ranking member Rep. Cathy McMorris Rodgers (R-WA) said, “this administration is using Big Tech to silence their opponents so they can advance their own power. Any reforms of Section 230 should lead to more speech, not less.” Trade association Chamber of Progress CEO Adam Kovacevich responded to the Biden administration’s calls for Section 230 reform, saying that “if Democrats want more competition and a healthier Internet, they should be defending and strengthening Section 230, not removing it.”
• What We’re Reading and Listening To: Tech Policy Press covered the announcement of the administration’s core principles for reform. At the White House United We Stand summit the week following the announcement of the principles, President Biden called on Congress to “get rid of special immunity for social media companies and impose much stronger transparency requirements on all of them.” The Center for American Progress summarized the progress the Biden administration has made on its technology policy agenda thus far, and called for specific actions the White House can take to fulfill the goals outlined in its principles for tech platform accountability.

Antitrust Enforcers Go Before Congress

• Summary: On September 20, the Senate Judiciary Committee antitrust subcommittee held an oversight hearing on antitrust enforcement, featuring Assistant Attorney General Jonathan Kanter and FTC Chair Lina Khan. In his testimony, Kanter urged Congress to pass the American Innovation and Choice Online Act (AICOA, S. 2992) and noted the importance of the Open App Markets Act (OAMA, S. 2710). Meanwhile, Chair Khan shared updates on FTC antitrust activities, including efforts to work with the Department of Justice to update merger guidelines, review contract terms for workers, and deploy enforcement efforts against monopolies and mergers by dominant parties. During the hearing, GOP members of the committee questioned Khan on the FTC’s goals and ambitions to tighten antitrust regulations. Within the FTC, enforcement actions and the threat of future investigation continue to loom large over major tech companies as speculation about possible FTC enforcement actions against Twitter following whistleblower Peiter “Mudge” Zatko’s testimony to Congress.
• Stakeholder Response: A coalition of public interest groups (including Public Citizen, Fight for the Future, National Employment Law Project, Demos, and Color of Change) urged the FTC to challenge Amazon’s iRobot acquisition on the grounds that the deal would endanger fair competition and consumer privacy.
• What We’re Reading: Politico covered the tools and tactics the FTC is deploying to equalize opportunities for technology businesses of all sizes. Protocol updated readers on the FTC’s investigations into Amazon’s proposed acquisitions of One Medical and iRobot.

New Legislation and Policy Updates

• Journalism Competition and Preservation Act (JCPA, S.673, sponsored by Sen. Amy Klobuchar, D-MN): This month, the Senate Judiciary Committee reported the JCPA for potential consideration by the full Senate on a 15-7 vote. The vote arrived after some initial stalls during the Senate Judiciary Committee markup period, which were resolved through the creation of a new amendment that excludes content ranking and moderation from the list of permissible topics for negotiations. The JCPA aims to create an eight-year safe harbor for small news companies, defined as those with staffs of 1,500 or less, so that they can collectively negotiate with Big Tech platforms over content distribution and advertising rates. Senate leadership has not announced a timeline for taking up the bill.
• Facial Recognition Act (sponsored by Rep. Ted Lieu, D-CA; Rep. Jimmy Gomez, D-CA; Rep. Sheila Jackson Lee, D-TX; and Rep. Yvette Clarke, D-NY. On September 29, Rep. Lieu introduced the Facial Recognition Act of 2022, aiming to limit law enforcement agencies’ use of facial recognition technology by prohibiting the technology’s use on policy body cameras, during protests, and on live video feeds, as well as requiring agencies to obtain a warrant before conducting facial recognition searches. The bill also limits the technology’s use to violent felonies and prohibits its use for immigration enforcement and illegitimate gathering of images. Unlike other legislation on facial recognition like the Facial Recognition and Biometric Technology Moratorium Act (H.R. 3907), this bill does not ban the technology, instead limiting its use and creating transparency requirements.
• The Black Tech Agenda: On September 13, Color of Change launched the Black Tech Agenda, a roadmap for tech policy that centers racial justice and roots out digital bias and discrimination. The agenda includes six pillars addressing antitrust policy, privacy and surveillance protections, algorithmic discrimination, broadband access, net neutrality, and disinformation/misinformation. Through these pillars, Color of Change hopes to support Black-owned businesses, protect Black workers and consumers, extend civil rights online, provide equitable access to services, and create free and fair access to the internet for all. The Black Tech Agenda is endorsed by several members of Congress, including Senator Cory Booker (D-NJ), Senator Elizabeth Warren (D-MA), Representative Robin Kelly (D-IL), and Representative Pramila Jayapal (D-WA).

Public Opinion Spotlight

In September, Pew Research Center released findings from a poll that surveyed 6,034 U.S. adults to better understand their experiences and attitudes about payment websites and apps such as Paypal, Venmo, Zelle, or Cash App. They found that:

• “Black and Hispanic Americans who use payment platforms are about twice as likely as their White counterparts to say they have sent money to someone and later realized it was a scam”
• “20 percent of Americans with lower incomes who have used payment apps or sites say they have been the target of a scam”
• “Black (22 percent) and Hispanic (17 percent) users are more likely than White (8 percent) users to say they have had their account hacked”
• “46 percent of people report they are somewhat confident that payment apps or sites keep personal information away from hackers”
• “34 percent of Americans say they are a little or not at all confident that payment apps or sites keep people’s personal information safe from hackers or unauthorized users”

The Tech Oversight Project spotlighted an Edison poll that found statewide bipartisan support in California for reining in large tech companies. The poll surveyed 1,208 Californians who reported that they will likely vote in the 2022 General Election. They found that:

• 55.8 percent of respondents think that large tech companies, such as Amazon, Google, and Facebook, have too much influence over government policy while 60.5 percent of respondents think they have too much influence over the national economy.
• 64.8 percent of respondents believe that current laws and standards for large tech companies are out of date and require significant improvement, while 35.2 percent believe that current laws and standards are enough to hold large tech companies accountable.
• 72.8 percent of respondents support the American Innovation and Choice Online Act
• 73.8 percent of respondents support the Open App Markets Act
• 66.2 percent of respondents would be less likely to support their Member of Congress if they accepted donations from Big Tech and then blocked accountability legislation while 19.8 percent said they would be more likely to support their Congressperson in that situation and 14.1 percent said that it would not affect their support.

This month, NetChoice, a trade association that represents major tech companies, released a poll conducted by Echelon Insights surveying 9,543 registered voters across 14 states in regard to economic issues ahead of midterm elections. They found that:

• “Only 2 percent of Americans say regulating the tech industry is a top 3 priority for them right now.”
• “89 percent of Americans say Congress should focus on addressing inflation rather than breaking up large tech companies.”
• “74 percent of Americans oppose a ban on Amazon promoting its own store-brand products (e.g. AmazonBasics). Only 12 percent support such a ban.”
• “61 percent of Americans say they’d be less likely to vote for a politician that supports proposals that could end Amazon Prime’s two-day shipping.”
• “Two-thirds of Americans trust the free market to address competition issues in the tech industry. Only 18 percent of Americans said they trust the government more to address this. Almost half of Americans say regulations on tech will make prices rise. Only 17 percent said regulations would help decrease prices.”

We welcome feedback on how this roundup and the underlying tracker could be most helpful in your work – please contact Alex Hart and Kennedy Patlan with your thoughts.