The past year put technology policy in the spotlight in many ways. From concerns about the spread of misinformation online, to proposals that would open up the door to a new breed of copyright and privacy trolls, technology companies of all sizes, especially startups, watched to see whether and how the Internet’s rules of the road would change in 2019.
It may be a new year, but it’s likely several of those technology policy debates will continue into 2020. While the presidential election in November will cast a long shadow over Congress’ legislative priorities and schedule this year, lawmakers will face a host of unresolved issues from last year as well as new ones when they return next week and kick off the second half of the current legislative session.
Data privacy: Congressional lawmakers spent much of last year debating the framework of a federal data privacy bill. Despite bipartisan support for creating a set of consistent and strong consumer protections around privacy, lawmakers have been unable to agree, especially on questions around whether a federal law would preempt existing state laws and give consumers the ability to sue over violations.
In the meantime, other countries and states are passing their own rules. California’s sweeping data privacy law—the California Consumer Privacy Act (CCPA)—officially took effect on Jan. 1. While full enforcement of the law’s not-yet-finalized regulations is not expected to begin until July, California Attorney General Xavier Becerra (D) said his office will still prosecute cases as warranted.
In lieu of federal legislation, CCPA is expected to serve as the nation’s de facto privacy law—for now. State lawmakers across the country are likely to move forward with their own privacy bills this year, which would result in a further patchwork of state-level requirements and penalties that would be especially harmful to startups.
Given the existing confusion over CCPA’s requirements, Congress has the opportunity to finally move forward with a single data privacy framework that creates strong protections for consumers and predictable, consistent obligations for companies across the country. There was a flurry of activity around privacy at the end of the year, with a Senate Commerce Committee hearing on the issue and a draft bill from House Energy and Commerce Committee staff, signaling that the issue will receive further bipartisan attention in 2020.
Intermediary liability: With the presidential election happening this November, Congress is likely to continue exploring concerns about the spread of political misinformation online, including questioning how Internet platforms should moderate their users’ content.
One bedrock law that will continue to be relevant is Section 230 of the Communications Decency Act—important intermediary liability protections that provide U.S. Internet platforms of all sizes with the ability to moderate and remove third-party content on their sites without the fear of ruinous litigation. While some lawmakers incorrectly blame that law for online ills, including alleged political censorship, hate speech, and misinformation, the law is crucial for startups that host user content.
Congress held several hearings last year focusing on content moderation practices, and some Democrats and Republicans have floated various bills to strip Section 230 protections from online platforms. That trend will likely continue in 2020, with one of the House Energy and Commerce Committee’s first announced hearings in the new year focused on “manipulation and deception in the digital age.”
Congress passed a law in 2018 that removed liability protections from platforms that "knowingly" host sex trafficking-related content shared by third-parties on their sites. But the law has received additional scrutiny since its passage, and a group of lawmakers at the end of last year introduced legislation to examine the impact of that 2018 law on sex workers and their ability to protect themselves from abuse.
Copyright: The Senate is poised to revisit the 1998 Digital Millennium Copyright Act (DMCA) this year. Among other things, the DMCA provides a system for copyright owners to address online infringement and limits infringement liability for internet service providers and platforms who comply with the law’s requirements. The DMCA created a notice-and-takedown framework for resolving instances of online infringement that has enabled Internet startups to innovate and grow without facing automatic liability for all user-generated content.
In an op-ed for The Hill, Sen. Thom Tillis (R-N.C.)—Chairman of the Senate Judiciary Subcommittee on Intellectual Property—said he plans to hold a series of hearings this year “to evaluate both the policy baseline created by the DMCA and the current practices and operations of both platforms and creators in response.” Tillis said that one of the goals of this process is to draft legislation that would “modernize” the DMCA.
While there may be imperfections in its application, the DMCA reflects a balanced framework that serves the interests of innovators and creators alike. And even with occasional problems—of some copyright owners sending wrongful takedown notices and some repeat infringers trying to evade the rules—the DMCA’s carefully negotiated balance remains valuable today. For startups specifically, it means they are not automatically liable for infringement by their users. Indeed, as Sen. Tillis noted, “how could fledgling internet companies survive if they could be held liable for everything their users did and said online?”
The startup voice and perspective must be included in any conversation about DMCA modernization efforts in order to ensure that fledgling ventures are not snuffed out by any overly burdensome changes that upset the existing balance in the law.
Startup Roundup:
#StartupsEverywhere: Sacramento, Calif. Sacramento-based entrepreneurs may not receive as much attention as their Silicon Valley neighbors, but StartupSac—a nonprofit focused on informing, educating, empowering, and connecting founders and innovators—is working to supercharge the local startup community’s growth.
