Karl Herchenroeder

The U.S. can reach a data transfer agreement with the EU without wholesale revisions to American surveillance laws, said Department of Commerce EU-U.S. Privacy Shield Director Alex Greenstein Friday (see 2009100001). On an ACT|The App Association webcast, he said any deal will depend on EU interpretations of the general data protection regulation.

Communications Decency Act Section 230 can be modified to ensure it’s not abused by tech companies seeking to avoid legitimate civil liability, FTC Commissioner Rebecca Kelly Slaughter said on C-SPAN's The Communicators, to have been televised this weekend. Section 230 is important for a thriving internet, but there are concerns about tech companies using it as a shield against civil liability outside the statute's scope, she said. She said requiring viewpoint neutrality doesn’t have any basis in the law concerning Section 230. It’s difficult to visualize any actions the FTC could take consistent with its legal mandates in response to President Donald Trump’s social media executive order (see 2009220049), she said. The FTC isn’t “political speech police,” the Democratic commissioner added, calling the EO “confounding” from a legal basis. Slaughter supports an FTC study on targeted advertising, which Commissioners Rohit Chopra and Christine Wilson also support. There should be transparency in the “black box” into which platforms funnel data, Slaughter said. Congress needs to look at court cases that limited antitrust enforcement, and the agency needs more antitrust resources, she argued. With large companies, agencies are likely to find anticompetitive activity, which her agency needs to examine, she said. The next administration should reinstate net neutrality rules and return broadband to the FTC’s purview as a Communications Act Title II service, she said.

Draft legislation will be circulated next week that would “fundamentally alter” tech companies' business models, House Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill., said during a hearing. Her draft bill will be aimed at giving regulators and consumers recourse when companies fail to deliver basic, stated commitments, she said. Reached after the hearing, Schakowsky wouldn’t say whether the draft bill directly targets Communications Decency Act Section 230.

No formal privacy talks are ongoing, Senate Commerce Committee members told us. Wednesday’s hearing with former FTC officials, in which legislators discussed specific proposals, was a good step forward, they said.

DOJ sent draft legislation to Congress Wednesday that would amend Communications Decency Act Section 230 to make tech platforms more accountable for alleged speech censorship and facilitation of criminal activity. The proposal got backlash from the Internet Association, Computer & Communications Industry Association, NetChoice and Public Knowledge.

The FTC is watching data portability issues closely, as they tie into consumer and antitrust, Consumer Protection Bureau Director Andrew Smith told the agency’s virtual workshop Tuesday. The FTC is following the Consumer Financial Protection Bureau’s recent announcement of a potential rulemaking under the Dodd-Frank Act Section 1033, which “authorizes the CFPB to create rules enhancing consumers’ access to their financial data,” Smith said. Data portability can increase consumer choice and control and foster competition by lowering barriers to entry, he said. increased data flows raise questions about how to properly ensure data is secured, he added. Data portability could eventually help balance network effects of platforms, said Karolina Mojzesowicz, European Commission deputy head-Unit for Data Protection, Directorate General for Justice and Consumers. Consumers are more sensitive about their data and more proactive about looking for services offering data portability, she said.

Anti-conservative bias was part of GOP thinking with recent Section 230-related legislation (see 2009080082), Senate Commerce Committee Chairman Roger Wicker, R-Miss., told us, calling his Communications Decency Act bill a “very reasonable proposal.” Academics likened the legislation to President Donald Trump’s social media executive order (see 2007230072), saying both are driven by unfounded claims of bias.

The FTC and DOJ Antitrust Division are looking at possible changes to Hart-Scott-Rodino (HSR) Act implementation, FTC said Monday, announcing an NPRM and Advance NPRM to be published in the Federal Register. It said the NPRM suggests proposed transaction filers disclose more information about their associates and exempting the acquisition of 10% or less of an issuer's voting securities. The ANPRM seeks information on such topics as the size of the transaction and routes for avoiding the HSR Act requirements. The FTC said the vote to publish the ANPRM was 5-0. The NPRM vote was 3-2, with Commissioners Rohit Chopra and Rebecca Kelly Slaughter dissenting. Chopra said the exemptions provisions are concerning because the FTC "will completely lose visibility into a large set of transactions involving non-controlling stakes." Slaughter said the expanded de minimis exemption is a "broadening of the black box of unseen transactions," and the proposed changes could have unforeseen effects on corporate governance. DOJ antitrust chief Makan Delrahim said he backs creating an exemption for certain de minimis investments of 10% or less "to address the regulatory burdens of an overbroad HSR requirement for certain minority investments that do not raise competition concerns.” DOJ said the agency was particularly interested in feedback on the NPRM on removing the director/officer and vendor/vendee carve-outs.

Patent and Trademark Office veteran Shira Perlmutter will be register of copyrights and Copyright Office director, Librarian of Congress Carla Hayden announced Monday. Perlmutter will take over in late October as the 14th register. She vacates her role as PTO chief policy officer and international affairs director, positions she had since 2012. Perlmutter “brings to this role a deep knowledge of domestic and international copyright law and policy and a background in negotiating international intellectual property agreements,” Hayden said. “She has experience working with a wide range of stakeholders and finding common ground on complex issues.” The Senate won’t have to confirm Perlmutter. Senate and House Judiciary Committee leaders in 2017 considered making the register a presidentially appointed, Senate-confirmed position with a 10-year term, but momentum slowed (see 1706090050). Maria Strong was acting register. At PTO, Perlmutter oversaw domestic and international IP policy and legislative engagement through the Office of Government Affairs. She was CO associate register-policy and international affairs in 1995. She previously was associate general counsel for IP policy at Time Warner and World Intellectual Property Organization copyright consultant. Perlmutter looks forward to “rejoining the dedicated staff of the Copyright Office on its mission of promoting the creation and dissemination of works of authorship.” NAB, Public Knowledge, the Computer & Communications Industry Association, Digital Media Association, RIAA, Motion Picture Alliance and Copyright Alliance welcomed the news. “The Copyright Office will now have new leadership at a time when updating its operations is more important than ever,” CCIA President Matt Schruers said. Copyright Alliance CEO Keith Kupferschmid described Perlmutter as a “proven leader and a beacon of knowledge and integrity within the intellectual property community for decades and will serve all stakeholders and users of the Copyright Office services well.” Perlmutter “consistently worked to promote understanding and progress in copyright law and has established herself as a preeminent authority,” said RIAA CEO Mitch Glazier. PK looks forward to working with Perlmutter to “protect and advance the rights of everyday users, fans, and consumers online,” said Senior Policy Counsel Meredith Rose.

Chinese-owned apps TikTok and WeChat will be banned from U.S. app stores starting Sunday, the Commerce Department announced Friday, citing national security concerns (see 2008240047). “The Chinese Communist Party (CCP) has demonstrated the means and motives to use these apps to threaten the national security, foreign policy, and the economy of the U.S.”