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The Technology 202

A newsletter briefing on the intersection of technology and politics.

Senate holdouts pose hurdle to surging privacy push in Congress

The Technology 202

A newsletter briefing on the intersection of technology and politics.

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Below: Hundreds of people reported crashes with Tesla’s Autopilot software, and some Senate Democrats want Sen. Amy Klobuchar (D-Minn.) to make a change to antitrust legislation. First:

Senate holdouts pose hurdle to surging privacy push in Congress

Congress is now dangerously close to striking a deal on a federal privacy law. It could fulfill years of pledges by lawmakers to rein in alleged data abuses by Silicon Valley.

Lawmakers touted their progress in those stalled efforts at a House hearing Tuesday, where officials, industry leaders and advocates discussed a major new draft bill, the bipartisan and bicameral American Data Privacy and Protection Act.

“This is the best opportunity we have had to pass a federal data privacy law in decades,” Rep. Cathy McMorris Rodgers (R-Wash.), ranking Republican on the House Energy and Commerce Committee, said during her opening remarks.

But even as lawmakers get closer than ever to advancing a broad data privacy bill for the first time, skepticism from several key senators remains a major roadblock.

Sen. Richard Blumenthal (D-Conn.), one of the lead privacy negotiators in the last Congress, voiced concerns that the latest legislative proposal would be too difficult to enforce and its plan to give consumers a right to bring lawsuits against companies too limited.

“I have a number of concerns, particularly relating to private rights of action, potential impediments to effective enforcement.” he told me. “I don’t think I can support it right now.”

Sen. Brian Schatz (D-Hawaii), another member of a working group that led privacy talks in the last Congress, reiterated objections that the proposal does not create a strong enough mandate for companies to treat user data reasonably and not use it to cause harm, which is often called a duty of care.

“It seems to me that any company not permanently harming consumers with the data should be comfortable with a duty of care, just like doctors and nurses and lawyers and tax preparers” pledge “not to use it against the interests of their client,” Schatz said. He added: “If they fix the duty of care, I’ll be a yes. If they don’t, I won’t.”

While the legislation is backed by the top Democrat and top Republican on the House Energy and Commerce Committee, as well as the ranking member on the Senate Commerce Committee, the top Democrat on the Senate committee remains a holdout.

After the trio of lawmakers unveiled the legislation earlier this month, Senate Commerce Chairwoman Maria Cantwell (D-Wash.) issued a critical statement. “For American consumers to have meaningful privacy protection, we need a strong federal law that is not riddled with enforcement loopholes,” she said, voicing the concerns echoed by Blumenthal.

Cantwell also appeared to criticize language in the proposal that would delay when users can file individual lawsuits against companies by four years, a bid to give regulators time to review. She indicated she shares the concerns raised by Schatz about not imposing a greater duty of care.

There are concerns among lawmakers that a broad duty of care standard would likely be struck down by the courts, which in recent months appear to be growing increasingly critical of federal agencies using powers not clearly delineated by Congress, according to one legislative aide familiar with the discussions who spoke on the condition of anonymity because they weren’t authorized to speak on the record. The language has also largely been a Democratic priority and may struggle to garner broad bipartisan support.

House Energy and Commerce Chairman Frank Pallone Jr. (D-N.J.), one of the lawmakers leading the new bill, said Tuesday that he sees far more agreement than disagreement between those leading the bill and Cantwell. “Most of the bill was in what she put forward as well,” he told reporters on the sidelines of the hearing, adding that there are “very few areas of disagreement.”

After years of disagreements on key issues including a private right of action and whether a federal mandate should override state standards, lawmakers managed to come to a preliminary agreement on not only those but other contentious provisions, including civil rights protections around data use and data safeguards for children.

Pallone said the trio of lawmakers continue to meet with Cantwell to try to win her support, and he thinks striking a final agreement is doable this Congress. McMorris Rodgers agreed. “We are going to keep engaging with her and the goal is to get a bill this Congress,” McMorris Rodgers told reporters Tuesday.

But lawmakers know the legislative calendar is dwindling, with the yearly August recess looming around the corner and the midterm elections following shortly thereafter. “I don’t want to wait too long because we are running out of time,” Pallone said.

Our top tabs

Tesla vehicles running Autopilot software involved in 273 crashes over past year

The 273 reported Tesla crashes disclosed by the National Highway Traffic Safety Administration (NHTSA) today are far more than were previously known, Faiz Siddiqui and Rachel Lerman report. The crashes amount to roughly 70 percent of incidents with advanced-driver assistance systems reported to NHTSA since July.

“The new data set stems from a federal order last summer requiring automakers to report crashes involving driver assistance to assess whether the technology presented safety risks. Tesla‘s vehicles have been found to shut off the advanced driver-assistance system, Autopilot, around one second before impact, according to the regulators,” my colleagues write.

Senators urge tweaks to antitrust bill so it won't ‘penalize’ content moderation

In a letter obtained by The Technology 202, four Democratic senators are asking Sen. Amy Klobuchar (D-Minn.) to address what they say is a gap in her self-preferencing bill called the American Innovation and Choice Online Act. Some groups have long criticized the bill, saying it could bar platforms from deplatforming sites like Infowars and let hate speech and misinformation fester online.

A provision in the law “imperil current content moderation practices by putting competition policy in direct conflict with the ability of companies to take down hate speech, disinformation and misinformation, and other objectionable content under existing law,” the senators wrote. “Although important, competition policy goals should not override the ability of platforms to moderate content in good faith.”

In the letter, Sens. Brian Schatz (D-Hawaii), Ron Wyden (D-Ore.), Ben Ray Luján (D-N.M.) and Tammy Baldwin (D-Wis.) suggest Klobuchar add a sentence to the bill clarifying that it wouldn’t penalize firms for moderating speech on their platforms.

“As numerous groups such as Public Knowledge and the Center for American Progress also conclude, our bill as written will not harm platforms’ ability to moderate content,” a Klobuchar spokesperson said in response. “That being said, as we have made clear for months, we are open to considering reasonable suggestions that are not intended to alter the core principles of this legislation: to protect consumers and small businesses from anti-competitive behavior by monopolies.”

Top Mass. court blocks ballot measure to classify gig drivers as independent contractors

It’s a loss for companies like Lyft and Uber, which argue that their drivers shouldn’t be classified as employees, the New York Times's Kellen Browning reports. The committee behind the initiative raised more than $17 million, with $13 million alone coming from Lyft, according to campaign finance records.

The ballot measure violated Massachusetts’s state constitution by including two “substantively distinct policy decisions, one of which is buried in obscure language,” the Massachusetts Supreme Judicial Court said. At issue was a section of the measure that said workers are “not an employee or agent” of the companies, an apparent attempt to shield the companies from liability.

Uber and Lyft declined to comment to the Times. Conor Yunits, the leader of the pro-measure Massachusetts Coalition for Independent Work, told the outlet that the measure would have passed. Yunits urged lawmakers in the state to make gig workers independent contractors.

Rant and rave

Microsoft is retiring Internet Explorer for many people today. Editor Tom Warren:

Journalist Kashmala Fida Mohatarem:

Writer Bradley Babendir:

Inside the industry

Elon Musk appeals decision concerning SEC settlement over Twitter posts (Reuters)

Mental-Health Startup Cerebral Investigated by FTC (Wall Street Journal)

UK tribunal backs most of ruling against Meta's Giphy deal (Reuters)

Hill happenings

Senator presses Amazon to disclose just how creepy Ring cameras can be (Gizmodo)

Competition watch

Qualcomm’s Antitrust Fine for Payments to Apple Is Annulled by European Court (Wall Street Journal)

Apple faces German antitrust probe over app tracking rules (Financial Times)

Trending

Netflix is turning Squid Game into a real-life game show, surprising no one (The Verge)

Daybook

  • The German Marshall Fund of the United States hosts an event on algorithmic auditing on Wednesday at 11 a.m.
  • Third Way hosts an event on China and the digital world order on Tuesday at 11 a.m.
  • The Pew Charitable Trusts holds its Broadband Access Summit on Tuesday and Wednesday.

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