Patents, Privacy, and (AI) Policy: U.S. Policy Update

It’s been a busy fall as elections loom and technology issues like privacy and AI have caught the public’s attention, for better or worse. Oh, and something about “peaches”, if I heard it right.

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While August was rather quiet in Washington due to both the House and Senate being on their respective summer recesses, September made up for it in a flurry of hearings, meetings, and events. The chaos doesn’t look to be dying down anytime soon, especially with an impeachment inquiry in full swing.

Top issues being talked about in town are AI funding and setting the United States up for global success, patent reform, and intermediary liability. Expect more information on those and more in the coming months. And of course, if you have any opinions on the below, we’d love to chat with you!

Patent Reform

Senate Meetings.

The Developers Alliance met with Senate staff of the committees and offices that are handling various pieces of legislation and draft legislation on patent reform to share the developer point of view and ensure that any changes to the Patent Act do not negatively impact developers.

No More Trolls, Strong Opposition To The Stronger Patents Act.

Developers Alliance has signed on to the United for Patent Reform letter to the sponsoring members expressing their concern over the STRONGER Patents Act, as we believe this bill could re-empower patent trolls and hurt the developer community. The STRONGER Patents Act of 2019 | H.R.3666 was referred to the Subcommittee on Courts, Intellectual Property, and the Internet on July 30th.

Senate Judiciary Empowering Trolls?

On September 11th, the Senate Judiciary Intellectual Property Subcommittee held a hearing on “Innovation in America: How Congress can make our patent system STRONGER.” The hearing was held to look at how Congress can improve the patent system. The hearing was run by Chairman Tillis (R-NC) with the help of Senator Coons (D-DE); the two are cosponsors of the rumored Section 101 (a key part of patent law) reform expected to be introduced this fall. Sen. Coons, along with Sen. Hirono (D-HI), who was also in attendance, are both cosponsors of the contentious yet bipartisan STRONGER Patents Act of 2019. Witnesses at the hearing included Professor Tom Cotter of The University of Minnesota School of Law, Mr. Bradley N. Ditty, Vice President and General Patent Counsel at InterDigital Holdings, Inc., Mr. Dan Lang, Vice President of Intellectual Property at Cisco Systems, Professor Adam Mossoff of the Antonin Scalia Law School at George Mason University, Mr. Josh Landau, Patent Counsel at the Computer and Communications Industry Association, and Mr. Earl "Eb" Bright II, President of ExploraMed. The witnesses testifying were split right down the middle being for and against the bill in question, with many raising industry and legal concerns on either end. The hearing largely pitted the medical device manufacturing community against the technology space, with Sen. Coons noting that the two stood at completely separate ends of the spectrum for how they felt the proposed bill would impact their respective industries. The hearing brought to light many issues that those in the technology space — and developers in particular — were concerned about. Given the public vocal opposition of the bill the hearing served to highlight the fact that there is a large sentiment of discontent on the legislation, as many in the technology space (among other industries) believe addressing patent reform in this manner will harm industry growth and create a large amount of litigation in the courts system.

Let’s Hope For Revisions.

Earlier this summer Sens. Tillis and Coons released a draft bill on reforms to Section 101 of the Patent Act. Over the last few months, various parties have had a chance to weigh in on the tightly-held draft legislation. There is heavy speculation that the sponsoring members are currently revising their legislation following the hearing on September 11th and will formally release a draft bill in the coming weeks.

Children's Online Privacy Protection Act (COPPA)

COPPA Comments Collected And Committed.

The Developers Alliance was present for the FTC COPPA Review Workshop, and will submit comments to the upcoming rule revision on behalf of the developer community.

Revisions to COPPA may affect many in the developer community, including those who do not design apps specifically for children. If your work is impacted by COPPA, we want to hear from you! Please reach out to Policy & Developer Relations Manager Sarah Richard using the form at the bottom of this page.

Won’t Someone Think Of The Children?

On August 22, the Family Online Safety Institute convened with FTC officials and U.S. Senator Ed Markey (D-MA) and his staff. On the table for discussion were Markey’s proposed bills, one known as COPPA 2.0 — a bill that expands COPPA protections by content and age breadth, the CAMRA Act — a bill funding research to determine how technology affects kids, and a soon-to-be introduced bill on Kids Internet Design and Safety (“KIDS Act”) that seeks to “regulate online features designed to keep kids glued to screens, marketing that pressures children into spending, and violent, sexually explicit and inappropriate content.”

Have $170 Million Lying Around? Asking For A Friend.

It was announced on September 4th that the FTC has settled with Google and YouTube for $170 million over the video sharing service illegally collecting personal information from children without their parents’ consent—a violation of COPPA. The settlement was reported as the largest amount the FTC has ever obtained in a COPPA case since the enactment of the law by Congress in 1998.

California Consumer Privacy Act (CCPA)

California Will No Longer Know How To Party. (It May Be A Privacy Violation.)

California's legislative session came to a close on September 13th. The state's landmark privacy law, the California Consumer Privacy Protection Act (CCPA) will survive intact, however some amendments and clarifications have already been made as to what the bill actually means. These early changes further our belief that revisions to the law will be necessary prior to any coherent enforcement. The state law takes effect Jan. 1, 2020. California Attorney General Xavier Becerra, whose office is still writing the regulations, stated that his office does not plan to enforce it until July 1, 2020.

We’ve warned you that the CCPA rollout is going to be contentious. In the last few months trade groups representing a variety of voices in the technology industry are racing to moderate the rollout of the bill and ideally delay enforcement of a confusing set of rules.

And You Thought GDPR Compliance Was Rough.

TLDR on why CCPA is a big deal: “Under the law, any company doing business in California, regardless of whether it has a physical presence in the state, must reveal what personal information they have collected about any California resident, upon request. Californians will also be able to ask a business or a data broker to stop selling that information, and to delete it. The law is more protective for California children under age 16, requiring advance permission from teenagers or parents of younger children before a company can sell their personal information.”

Have Some Decency Will Ya?

Policing Speech on the Internet: AKA Section 230 of the Communications Decency Act is the law that allows users to post online and for platforms to moderate content without getting sued for what users post. Multiple senators have indicated that they are working on bills to alter Section 230 of the Communications Decency Act his fall. Sen. Brian Schatz (D-HI) indicated that he's not yet decided whether his bill will be a specific carve-out to the law, like last year's measure to make websites liable for online sex trafficking, or if it will include a requirement that websites maintain a certain "standard of care" for user content. "Both concepts are in play right now," he said. Sen. Joe Manchin (D-WV) is taking a more targeted approach with a carve out, as his bill is specifically aimed at combating illegal online opioid sales—an issue that has been plaguing his district specifically. It has further been rumored that Sen. Ted Cruz (R-TX) has additionally been looking to the Senate Judiciary Subcommittee on the Constitution for efforts to reform Section 230 in the coming months. In the past, Cruz reportedly stated “Right now, big tech enjoys an immunity from liability on the assumption they would be neutral and fair...if they’re not going to be neutral and fair, if they’re going to be biased, we should repeal the immunity from liability so they should be liable like the rest of us.” Senate Commerce Chairman Wicker however said that ending or altering Section 230 would likely be "too big of a lift," thus stay tuned on how this develops.

The White House Has A Plan For Preventing Mass Shootings.

The White House is looking to work with social media platforms "to develop tools that can detect mass shooters before they strike" in the wake of the El Paso tragedy. The administration has met with various internet and technology companies to determine best efforts on how to accomplish these goals and curb violent extremism online generally. Rep. Ro Khanna (D-Calif.), whose district includes a slice of Silicon Valley, stated "We need better solutions to remove any content that incites violence proactively while recognizing and protecting First Amendment rights."

I’m Not Biased But….

Further on the topic of content moderation, the White House is considering an executive order (EO) to prevent political bias on technology platforms. Details of the draft have not yet been released, but an EO of this nature would be an escalation of the Administration’s attempts at regulating content on the internet. The President has indicated he is watching tech companies “very closely” following statements made on inequity in election treatment by a “disgruntled former employee”.

All That Artificial Intelligence Talk

The U.S. federal government recently announced plans to spend almost $1 billion in nondefense artificial intelligence research and development in fiscal 2020, according to a supplemental report to the president’s budget request. Many experts in the space however warn that this additional funding is still not enough given the breadth of AI and the need for the United States to remain competitive in this sector.

Running The AI Race.

U.S. Chief Technology Officer Michael Kratsios has had a very busy month in Washington, as he has spoken at a number of events in town following the Trump administration’s push on AI. In line with other panelists around town, Kratsios has downplayed the idea that China has an advantage over the U.S. in the race to develop artificial intelligence. His comments come amongst a flurry of AI talk in the United States, particularly regarding us leading in AI technologies.

Reaching The Summit.

On September 9, 2019, The White House hosted The Summit on Artificial Intelligence (AI) in Government. The event brought together over 175 leaders and experts from government, industry, and academia to spark ideas for how the Federal government can adopt AI to achieve its mission and improve services to the American people. The event focused on the public and private sectors working together to ensure American successes in the AI space, and establishing near- term solutions to improve government services using AI. President Trump has emphasized the importance of a strong AI sector to the American economy and the nation’s future as a whole with regards to global technology leadership. This has included his support and creation of the American AI Initiative to achieve these goals. Highlighting the importance the administration is placing on AI leadership, panelists at the event included Ivanka Trump, Advisor to the President, Lt. Gen. Jack Shanahan, Director of the Joint Artificial Intelligence Center (JAIC) in the Department of Defense (DoD), and a variety of senior officials across many branches of the government.

How To Maintain Your Lead And Influence AI.

On September 10th, the Center for Data Innovation hosted a panel on How the United States Can Maintain Its Lead in the Global AI Race at the National Press Club in Washington, DC. The event included commentary from Michael Kratsios, U.S. Chief Technology Officer, Fiona Alexander, Distinguished Policy Strategist, School of International Service at American University, Jackie Medecki, Director and Managing Attorney of US AI and Healthcare Policy at Intel Corporation, Anthony Robbins, Vice President, North America Public Sector at Nvidia, Frank Torres, Director of Consumer Affairs at Microsoft Corporation, and Michael McLaughlin, Research Analyst at the Center for Data Innovation. The event was moderated by Daniel Castro, Director at the Center for Data Innovation. Developers Alliance was present at the event and you can read our take here.

Adoption Assistance.

On September 12, 2019 the Dell Technologies Forum hosted a number of speakers to discuss how federal agencies are grappling with a new data policy. Highlights from the event included a keynote by Congressman Will Hurd (R-TX, 23), which focused on government efficiency in the technology sector and continuing to push for a broad AI strategy before he retires from the House of Representatives next year. Hill, along with his colleague Rep. Robin Kelly (D-IL, 2) have led the charge on AI policy in recent years. Hill stated that “We should increase the resources devoted to research and development...the government would also set an example and lead the way in adopting AI. This can save taxpayer dollars … and make the government actually more efficient.” Further, Hill noted that he also wants to push for the creation of standards, but “we can’t let federal standards and onerous regulations get in the way of AI innovations,” he said.

New Bills

Allegra? Aurora? Amanda?

Automatic Listening Exploitation Act, introduced in the House on July 25 as bill number H.R. 4048, by Rep. Seth Moulton (D, MA-6), would fine a company $40K for each recording their smart home device makes without a user’s permission. Exceptions would be made for service improvements, such as to “improve the speech recognition and natural language understanding of the voice-user interface” or “help the voice-user interface to adapt to speech patterns, vocabulary, and personal preferences.” “Smart speakers and doorbells are great, but consumers should have a way to fight back when tech companies collect more data than Americans have agreed to give up,” Rep. Moulton stated. “More broadly, Congress should give Americans a bigger say in the data that companies collect. It’s time for a next generation of digital privacy laws, and it can start by holding corporations to their own privacy commitments.” The bill currently does not have any cosponsors, and is presently awaiting a potential vote in the House Energy and Commerce Committee. Many industry players such as Amazon and Google have, unsurprisingly, reportedly weighed in to kill the legislation before it gets out of committee. (Think Rep. Moulton would have liked Alexa better if he knew he could get campaign donations through her?)

Crossing The Aisle With The OTA.

A bi-partisan bill was introduced to reopen the Office of Technology Assessment (OTA). The proposed bill, the Office of Technology Assessment Improvement and Enhancement Act, was created to introduce enhancements to the existing OTA. The office was initially designed to equip Congress with technical expertise, and the proposed bill strives to promote efficiency within the department, and make improvements to the OTA so that it is more accessible and responsive to today’s Members’ needs. The measure would additionally rename the shop the "Congressional Office of Technology." Given the call for members of Congress to have advanced technical expertise on the industries they are regulating, reenergizing this office to make that happen appears to be welcomed by most in town.

Wait, Wait, Don’t Tell Me… Voting?

On July 31, Sen. Diane Feinstein (D-CA) introduced S.2398 - Voter Privacy Act of 2019. The bill looks to address a lack of federal regulation on the collection and use of voter data by political organizations in the wake of the Cambridge Analytica scandal. The bill also seeks to give voters control over how that data is used in federal elections.

Haven’t I Seen You Somewhere Before? (Not Online You Didn’t).

On August 8th, a Federal Court of Appeals certified a class, thus allowing a case to proceed against biometrics recognition. The court states that “the development of a face template using facial-recognition technology without consent...invades an individual’s private affairs and concrete interests [to privacy].” This ruling now allows the broader lawsuit to proceed in the district court. If the plaintiffs (Illinois residents) prevail, companies (such as Facebook, who is the defendant here) will be held liable for using facial recognition technology without express user consent.