Karl Herchenroeder

The FCC effort to interpret Communications Decency Act Section 230 isn’t comparable to the heavy-handed regulations repealed during the net neutrality debate in the late 2000s, Commissioner Brendan Carr said Tuesday during a Federalist Society event. Public Knowledge Senior Vice President Harold Feld questioned how Carr could be against Communications Act Title II regulation of internet service providers but also support Section 230 regulatory changes envisioned by the Trump administration (see 2011060053).

Zoom deceived users about encryption services, circumvented browser security features and exposed consumers to third-party surveillance, the FTC alleged Monday in a nonmonetary settlement with the company. The commission voted 3-2 with Democrats Rohit Chopra and Rebecca Kelly Slaughter dissenting.

The FCC’s Communications Decency Act Section 230 rulemaking proceeding (see 2010210062) opens the door for a potential Biden administration to pursue its own interpretation of the technology industry’s liability shield, tech observers and legal experts told us. Rather than drop the proceeding, initiated by President Donald Trump’s social media executive order, a Democratic FCC could take an activist approach with it, they said.

If Democrat Joe Biden wins the presidency, he could potentially expand DOJ’s antitrust lawsuit against Google, former antitrust enforcers and experts said in interviews. If President Donald Trump is reelected, they expect DOJ to avoid settlement talks and prosecute the case vigorously.

It’s questionable whether a consumer could sue over unlawful surveillance if the federal government is always able to claim classified information protections, said 9th U.S. Circuit Court of Appeals Judge Margaret McKeown Monday during oral argument in Jewel v. NSA (see 2004170052).

The Supreme Court didn’t offer a clear picture at oral argument for how it might rule in Oracle’s lawsuit against Google (see 2010070065), but remarks from justices were telling, observers told us. Potential outcomes include the high court remanding the case or a 4-4 split, which would be a victory for Oracle, they said. Stakeholders disagreed about what the justices’ comments meant for each side.

It’s encouraging that Facebook CEO Mark Zuckerberg endorsed the concept of “more specific rules” in Communications Decency Act Section 230, Senate Commerce Committee Chairman Roger Wicker, R-Miss., told us after Wednesday’s hearing. “We may be getting somewhere,” he said, though he noted it wasn’t an endorsement of the Republican bill pushing the concept (see 2009220064).

It’s inequitable for regions with similar privacy values, like the U.S. and EU, to “point fingers” about upholding privacy rights, FTC Commissioner Noah Phillips said Tuesday on effects of the Schrems II decision (see 2009250071). Policymakers should recognize shared privacy values while drawing the line against countries that don’t respect privacy, he told a U.S. Chamber of Commerce event. “We have so much more in common with Europe than that which separates us, and I think that needs to be a critical part of the conversation.” Countries with data localization standards ought to be the “barriers to trade” that allies focus on, he said.

Congress shouldn’t let local news “die” because Big Tech companies unfairly leverage the ad market, Senate Commerce Committee ranking member Maria Cantwell, D-Wash., said Tuesday, releasing a report showing newspaper revenue declining about 70% by the end of 2020 vs. two decades ago. The report said broadcasters lost more than 40% of ad revenue 2000-2018, and since 2005, papers lost about 60% of their overall workforce. “The biggest online platforms unfairly use content, take local news consumer data and divert customers away from local news websites, while providing little in return,” she said. NAB, Public Knowledge and the News Media Alliance welcomed the report. NAB supports “findings that the competitive power of a handful of digital platforms has dominated the marketplace for advertising and audiences,” said CEO Gordon Smith. “Targeted federal funding and new regulatory tools can help transition local journalism to succeed in the digital marketplace,” said PK Senior Policy Fellow Lisa Macpherson. Google and Facebook “effectively regulate news publishers by determining how (and whether) journalism is distributed and monetized,” said News Media Alliance CEO David Chavern. The "accusation" that Facebook scrapes news articles is "simply not true," a company spokesperson emailed: "We give news organizations the ability to post news on Facebook free of charge, and they have full control over how that content is accessed and monetized." The platform cited $400 million in contributions to "programs and partnerships with a focus on local news." News publishers are facing “enormous” challenges, but the report is a misrepresentation, a Google spokesperson emailed: “We provide value to the news industry by sending people to news sites 24 billion times a month, help publishers make money with our advertising products and provide support via the Google News Initiative.” The company cited a $1 billion investment in partnerships with news publishers for Google News Showcase.

The FTC’s cases against Facebook and Google show a paradigm shift in privacy enforcement, Consumer Protection Bureau Director Andrew Smith told an FCBA event Monday. The Facebook case (see 1907240042) provided a new model for relief, while the Google case, which involved Children’s Online Privacy Protection Act (COPPA) allegations (see 1909040066), established a new approach for liability, said Smith. The broader message in the Google case is that if users are violating the law, the platform can’t necessarily escape enforcement when there’s knowledge of the violations, he said.