How the Supreme Court will shape tech policy
Lawmakers Rally To Protect Privacy As SCOTUS Prepares Historic Roe Decision
As the Supreme Court prepares to issue a ruling that could overturn Roe v. Wade, Democratic lawmakers are scrambling to propose legislation that would help protect women's privacy in a post-Roe world. On Friday, a group of 21 Members of Congress led by Senator Mark Warner (D-VA) and Representative Elissa Slotkin (D-MI) sent a letter to Google, urging the company to re-evaluate how it treats search results directing women to anti-abortion crisis pregnancy centers, instead of to real abortion clinics. In their letter, the lawmakers cited a study conducted by the Center for Countering Digital Hate, which found that 11 percent of Google searches for “abortion clinic near me” in so-called “trigger law” states (states where abortion would immediately become illegal, should Roe be overturned) brought users to clinics designed to dissuade women from having an abortion.
This week, Rep. Sara Jacobs (D-CA) and Sens. Mazie Hirono (D-HI) and Ron Wyden (D-OR) introduced the My Body, My Data Act. The bill seeks to protect health data by restricting companies to collecting only health data that’s “strictly necessary” to provide services, as well as give users the right to demand that their data be deleted. It’s supported by 43 co-sponsors in the House and 10 in the Senate, and endorsed by the Electronic Frontier Foundation.
RESPONSES
In their statement in support of Rep. Jacobs’ bill, EFF said: “Privacy fears should never stand in the way of healthcare. That's why this common-sense bill will require businesses and non-governmental organizations to act responsibly with personal information concerning reproductive health care.”
The supportive statement was released alongside Planned Parenthood, NARAL, National Abortion Federation, URGE, National Partnership for Women & Families, and Feminist Majority.
In a statement on the letter to Google, CEO of CCDH Imran Ahed said: “When people search for information or services relating to their sexual and reproductive health, Google is sending them to sites that users expect to contain robust, scientific, evidence-driven healthcare information – but they actually contain ideologically-driven opinion and misinformation.”
Planned Parenthood Action tweeted in support of lawmakers’ letter to Google: “When people google abortion care, OVER 37% of the results in states where abortion access is already at risk lead people to fake health clinics. Hey @google: Let’s do better.”
The Tech Oversight Project tweeted an article highlighting the CCDH report and lawmakers’ letter to Google, adding: “Don’t you dare say regulating Big Tech can wait.”
Erin Matson, Executive Director at Reproaction, tweeted, “Thank you, @MarkWarner and @RepSlotkin, for your leadership. Anti-abortion fake clinics should not be getting a pass from Google. These are bad actors who are part of a broader movement seeking to criminalize people seeking abortion care. The stakes are too high to ignore.”
Rachel O’Leary Carmona, Executive Director of Women’s March, tweeted, “Anti-abortion leaders run crisis pregnancy centers that spread disinformation about abortions and reproductive access. Tech companies like Google that push these in search results are complicit in disinformation.”
The ACLU hosted an episode of their “At Liberty” podcast on the broader subject of Roe’s repeal, featuring Cecile Richards (former President of Planned Parenthood) as well as a panel of abortion providers based in Texas. From the episode: “In September, Texas passed SB8, a bill that banned abortions at 6 weeks of pregnancy and deputized private citizens to enforce the ban. Since then, it’s been an ‘all hands on deck’ operation to provide care to those in Texas still eligible in-state, while also helping shuffle others to states still with broader access. We can look to Texas to see some of what a world post-Roe v. Wade could look like for many other states.”
The Brennan Center wrote a blog post on the importance of state courts, should Roe be overturned. They write: “With the Supreme Court poised to turn back the clock on federal abortion protections and many other important rights, state courts are more important now than ever. To ensure that they can serve as a check against efforts to restrict individual rights, these courts must be free from political interference.”
Writing in Techdirt, Mike Masnick wrote on the tech policy implications of overturning Roe v. Wade, saying: “We’ve already discussed how the expected overturning of Roe v. Wade by the Supreme Court may impact the debate on encryption, but it has a likelihood of impacting lots of other important tech debates as well.”
He specifically highlighted Sen. Ron Wyden’s piece in Slate on the importance of Section 230 in a post-Roe world. He writes: “As Wyden notes, even if these lawsuits won’t win, without Section 230 acting as a protective buffer, the threat of liability becomes large enough to pressure websites into blocking discussions about abortion. This isn’t theoretical. We saw it with the last change to Section 230 — FOSTA…”
Masnick went on to conclude: “The risk of authoritarian power over speech, privacy, and human bodies seems like kind of a big issue. Unfortunately, for reasons that still don’t make any sense, the attacks on Section 230 remain bipartisan, playing right into the hands of censorial Republicans trying to stifle rights. It’s time that Democrats realized, yet again, how they’re being played, and focus on protecting, rather than undermining Section 230.”
In an interview with NPR, the National Association of Criminal Defense Lawyers’ executive director, Lisa Wayne, said: “[O]ur legal concern is to make sure that we are sounding an alarm bell about the wave of expansive prosecutions that we are certain will follow any significant curtailment or reversal of Roe vs. Wade… We're talking about the doctors performing them, the friends, the parents, the boyfriends. All of those people will be exposed to criminal penalties, which opens up the floodgates to overcriminalization and mass incarceration.”
President of Color of Change, Rashad Robinson, tweeted, “Roe is the floor. To support the reproductive health of all birth givers, but especially Black women we need reproductive justice. Congress must codify bodily autonomy with urgency. #LiberateBodies”
Research Director at Freedom House, Allie Funk, tweeted, “We need to move beyond putting the onus on individual people to safeguard their privacy. Digital hygiene can only go so far in protecting people in a post-Roe US.”
AICOA’s Content Moderation Loophole Sparks A Tense Exchange Between Academics And Advocates
Anupam Chander, professor of law and technology at Georgetown University, announced in a tweet that “some of the nation's leading internet law professors wrote an open letter to Congress observing that the American Innovation and Choice Online bill, in current form, will have negative implications for hate speech and disinformation.“ The letter urges Congress “to amend [the bills] to exclude content moderation so as to avoid these adverse unintended consequences for our online environment.” The argument builds on earlier arguments made by Free Press that the AICOA contains a loophole that would make it harder for online platforms to combat hate, disinformation, and online harassment. More specifically, because the AICOA prohibits certain activities that adversely affect business users, Chander and his co-authors point out that state attorneys general "could argue that a platform’s decision not to carry hate speech or election misinformation is not about content moderation but self-preferencing or discrimination to favor themselves or their business users."
Luther Lowe, Senior Vice President of Public Policy at Yelp and part of the Antitrust Summer campaign, responded to Chander, tweeting an ad hominem attack on Chander’s academic integrity. Chander responded. The exchange generated an avalanche of responses from academics and experts, some noting the hypocrisy of Lowe’s criticism in light of Yelp’s efforts at academic capture. Technology researcher and lawyer James Grimmelmann tweeted: “Yelp’s @LutherLowe has spent years courting academics, trying to convince us he cares about principles, not just Yelp’s bottom line. It’s painful to watch him shred years of outreach by throwing around baseless claims of bias against one of the most principled scholars I know.”
Chander’s letter arrived on the heels of a similar letter sent last week by Senators Brian Schatz (D-HI), Ron Wyden (D-OR), Ben Ray Luján (D-NM) and Tammy Baldwin (D-WI), urging the bill’s sponsors to address the content moderation loophole. Writing about the Senators’ letter for TechDirt, Karl Bode speculated that the AICOA enjoys Republican support primarily because of this issue. According to Bode, “Senator Ted Cruz has admitted he supports the bill because it will ‘unleash the trial lawyers’ to file lawsuits about content moderation against internet companies.”
RESPONSES
Responses in support of Lowe’s criticism included Matt Stoller and Jeremy Flores:
Hal Singer, who tweeted, “There is something fundamentally broken with the way academics depend on Big Tech—and monopolists generally—for funding. This distortion in our education system likely explains why the anti-monopoly movement has been derailed since the 1970s.”
Luther Lowe responded, “It feels like the last couple years have led to some shame/introspection at least within the antitrust econ & antitrust law over soft capture by Big Tech. A similar reckoning has clearly not made its way into the cyber law crowd, which is similarly awash in $ and conflicts.”
Responses in support of Chander’s rebuttal included Tim Carr, Carl Szabo, Siva Vaidhyanathan, Barbara Lazarotto, Dave Fagundes, Neil Richards, John Patrick Hunt, Jonah Perlin, Danielle Citron, David Kaye, Jeff Kosseff, Chinmayi Arun, Graham Webster, Nikolas Guggenberg, Julie Cohen, Mark Lemley, Tiffany C. Li, Sharon Sandeen, Milton Mueller, Timothy R. Holbrook, Erika George, Francisco de Abreu Duarte, Luke McDonagh, Rory Van Loo, Derek Bambaeur, Meera Deo, Alicia Solow-Niederman, Harry Surden, Deirdre K. Mulligan, as well as:
Murray and Kathleen Bring Professor of Law at NYU Chris Sprigman, who responded to Lowe: “This guy is VP for Public Policy for Yelp. He’s bullying an academic for receiving a grant from Google to hire a research fellow. Grant was made to university, not to academic individually, and was fully disclosed… I share the concerns expressed in the letter, but hadn’t signed on bc For a long time now I’ve only rarely signed letters like this. But I cannot stand a bully. So I’m signed on now. I hope others will join me.”
Blake E. Reid, clinical professor at Colorado Law, who said in a Twitter thread: “Just going to reiterate: I don't follow the argument that #AICOA's ‘material harm to competition’ standard imports legacy antitrust limitations. There's a more straightforward argument that the text of the statute doesn't do this, purely as a matter of statutory interpretation.”
He continued, saying: “I don't understand why folks are pushing the argument, in response to the content moderation concerns raised by @JaneYakowitz @AnupamChander and others, that the bill is actually too weak to address any kind of anticompetitive action that implicates content moderation… The entire web 2.0 project is premised on intertwining economic discrimination with editorial discrimination. If material harm is so strong that it self-evidently forecloses using AICOA against the latter, it's hard to see how it's a powerful tool against the former.”
He also later tweeted, “Anupam is both a generous, kind, and decent person and a brilliant scholar on a range of Internet law issues. Besmirching his integrity over a totally good-faith critique is unfair and unwarranted.”
Ann Bartow, professor at the University of New Hampshire’s School of Law, who tweeted: “I called b.s. on Yelp years ago, so many dubious practices.”
Edward Swaine, professor at George Washington University Law, who tweeted at Lowe: “As you've not disclosed any of your financial support, or even your affiliation, I am going to assume you are *completely economically dependent* on something affected by this issue -- throw in some junkets, too. Am I wrong?”
Andy Sellars, clinical associate professor at Boston University’s School of Law, tweeted: “So @yelp sure destroyed their academic credibility today. If I were an investor I would be livid at @lutherlowe and @jeremys' completely baseless attack on @AnupamChander for daring to suggest that AICOA as drafted has some unintended problems (and it does).”
Professor of Law at St. John’s University, Kate Klonick, who tweeted: “This is ridiculous. Anupam is a scrupulously ethical scholar and person and this lazy ad hominem tens of attacks on researchers who accept and disclose funding for doing their research has got to stop.”
Shifting blame from the individual to the environment around policymaking, The New York Times’ Konstantinos Komaitis tweeted: “This is absolutely ridiculous especially when it is done to ethical people. The moment multibillion companies engage in such harassment and throw their resources into intimidating opinions, you know there is something seriously wrong with the way the market works.”
Similarly, UNC Law Professor Ifeoma Ajunwa tweeted: “Wow. I'm so sorry to read about this happening to you! Law and tech scholars have a responsibility to speak out when they see unethical tech. Big companies like Yelp can not be allowed to use such attacks to silence them!”
The American Data Privacy And Protection Act Is Advancing to a Full Committee Markup
Today, the House Energy and Commerce Consumer Protection Subcommittee voted unanimously to advance the American Data Privacy and Protection Act (ADPPA), a recently-introduced bipartisan bill that we covered earlier this month. The bill would impose new data protection requirements on businesses that collect, use, and store information about consumers. The draft has been called the “three corners” bill because there is support from three of the four “corners” of the relevant committees: the Chair and Ranking Member of the House Energy and Commerce Committee and the Ranking Member of the Senate Commerce Committee. The fourth “corner” is Senate Commerce Committee Chair Maria Cantwell, who is circulating her own version of the bill known as the Consumer Online Privacy Rights Act (S.3195), the differences in the bills being the main point of contention. Overall, the bill proposes a substantial overhaul of consumer privacy protections, expanding the scope of coverage and penalties in existing laws, that would be enforced by the FTC and State Attorneys General.
Digital advocacy groups are optimistic about the changes made to the ADPPA discussion draft prior to its introduction this week. However, Senate Commerce Chair Maria Cantwell (D-WA) said that she and Senate Majority Leader Chuck Schumer (D-NY) both agree that “there’s no way” that the bill can be introduced into the senate as it has “major enforcement holes.” Cantwell also asserted that the bill makes it too complicated for individuals to sue companies over data privacy breaches, arguing that a strong and straightforward federal law is what American consumers deserve.
RESPONSES
In a statement, the Center for Democracy and Technology said: “This version of the ADPPA is a significant improvement over the original draft from earlier this month. While there are many lingering issues that need to be addressed, particularly how to craft a private right of action that will allow for individuals to effectively enforce their rights under the bill, the overall structure and substantive provisions of the bill are moving in the right direction.”
They continued, saying: “We hope the bill continues to improve and look forward to seeing this vehicle move through the legislative process with an aim to pass a substantively strong and enforceable privacy law by year’s end.”
In a Twitter thread, EPIC said: “[We] commend Representatives Pallone, Rogers, Schakowsky, and Bilirakis for their work on the American Data Privacy and Protection Act. It is long past time for Congress to enact comprehensive privacy legislation.”
They continued, saying: “The United States faces a data privacy crisis—Americans have lost control of their data and online tracking is out of control… ADPPA’s focus on data minimization, strong protections for sensitive data, and civil rights protections will go a long way in curbing the data abuses plaguing Americans today.”
Deputy Director Caitriona Fitzgerald tweeted, “More than 80% of voters supported the four major planks of the bill, including a ban on the sale of an individual's personal data without their explicit consent and enhanced privacy protections for children. All four measures also have strong bipartisan support.”
EFF tweeted, “We look forward to working with the sponsors of the American Data Privacy and Protection Act to improve the legislation and strengthen the necessary privacy protections. Congress has our suggestions to make it better.”
Ranking Digital Rights tweeted, “There are details to iron out, and quickly - but let's not waste this rare opportunity for a bipartisan federal privacy bill with strong data minimization and civil rights protections.”
Evan Greer, director of Fight for the Future, tweeted, “We @fightfortheftr are still assessing the substance of the "three corners" bill that will be marked up in the House today. There is a lot to like, but also a lot of stuff that would absolutely have to be improved to make the bill strong enough for us to support it.”
She continued, saying: “@SenatorCantwell's role here is not one of ‘privacy champion trying to strengthen the eventual bill.’ She's just trying to create chaos and sink any deal on privacy this Congress, for unclear, likely gross reasons”
Maryland Workers Unionize First Apple U.S Retail Store
In a historic vote, workers at an Apple store in Towson, Maryland became the company’s first retail store to unionize, joining the International Association of Machinists and Aerospace Workers labor union. President Joe Biden applauded the workers in a statement to reporters, saying, “workers have a right to determine under what conditions they're going to work or not work.”
Calling for a greater say in their working conditions and increased pay, the Towson organizers, self-named AppleCore, join an active, countrywide labor movement as employee activism continues to surge amidst the ongoing Covid-19 pandemic. As we highlighted in April, Apple store workers in Atlanta had also filed to hold a union election and called for equitable pay and better benefits. Since then, workers at the Atlanta Apple store have withdrawn their request to hold a vote, citing anti-union activity by the company.
Earlier this year, Amazon workers in Staten Island's JFK8 warehouse made history by forming the company's first union. But Amazon refuses to recognize it, demonstrating the hurdles to unionization that exist beyond the vote.
RESPONSES
The Machinists Union tweeted, “Thank you, @POTUS! We're so proud of our new IAM @acoreunion members in Maryland. Worker power is spreading across the country.”
CODE-CWA tweeted, “Congratulations! Not only is @PostProdGuildNY the first post production coordinators in NY to win formal union representation, this is also the first time workers employed by Apple have won a union through the NLRB process. Groundbreaking! Onward to a strong contract.”
Robert Reich, former United States Secretary of Labor, tweeted, “The first unionized Apple Store. The first unionized Amazon warehouse. Over 150 unionized Starbucks stores. Make no mistake: workers are taking their power back.”
Alphabet Workers Union tweeted, “Apple Store workers in Maryland have unionized! Solidarity with these incredible workers—we know this is just the beginning.”
Steven Greenhouse, labor reporter at the New York Times, tweeted, “A few months ago hardly anyone thought we'd see a giant Amazon warehouse unionized, an Apple store unionized & 158 Starbucks unionized, especially since they're 3 intensely anti-union corporate giants Many young workers are evidently very eager to unionize & have a voice at work.”
Paris Marx, host of the podcast Tech Won’t Save Us, tweeted, “excited to see the starbucks effect hit apple next.”
Sean Gallagher, editor at Ars Technica, tweeted, “Despite a concerted pressure campaign by Apple, the workers at the Towson Apple Store (where my son works) voted to unionize yesterday-the first Apple retail store in the US to do so, but definitely not the last.”
Actor and activist Mark Ruffalo tweeted, “Congratulations Apple workers! Now it’s time for every Apple store in the USA. Next up, Tesla Inc!”
OPEN TABS
A Platform ‘Weaponized’: How YouTube Spreads Harmful Content – And What Can Be Done About It (NYU-STERN)
TikTok moves all US traffic to Oracle servers, amid new claims user data was accessed from China (TechCrunch)
June 21st: Get the Tech Off My Body (May First)
Big Tech Monopolies Endanger American Security (American Economic Liberties Project)
Google Says It Bans Gun Ads. It Actually Makes Money From Them. (ProPublica)
Microsoft to retire controversial facial recognition tool that claims to identify emotion (The Verge)