Emerging Technologies Washington Update February 2019 #2

McGuireWoods Consulting

Week in Review

On Monday evening, congressional negotiators announced a deal in principle on border security to avert a government shutdown at midnight tomorrow, provided it passes both chambers and the President agrees to sign it into law. The agreement provides $1.375 billion for 55 miles of physical barriers on the southern border, well below the President’s initial $5.7 billion request. The funds are included in a seven-bill omnibus appropriations package that also funds the departments and agencies that were subject to last month’s partial government shutdown, including the Departments of Transportation, Commerce, and Justice, among others.

The Senate is expected to pass the measure this afternoon. Assuming it passes, the House, where the package faces more opposition, will vote this evening. The White House has not said whether or not the President will sign the bill.  

Elsewhere, the Senate voted 55-44 on Tuesday to end debate on William Barr’s nomination to be the next Attorney General. Senators Jones (D-AL), Sinema (D-AZ), and Manchin (D-WV) joined most of the Republican caucus in support; Senator Paul (R-KY) opposed. The Senate then voted 54-45 this afternoon to confirm Barr’s nomination. The Senate also voted 92-8 on Tuesday to pass a sweeping bipartisan lands package that permanently authorizes the Land and Water Conservation Fund. On the other side of the Capitol, House committees held hearings this week on drug prices and the impact of the partial government shutdown on aviation. The House Judiciary Committee also advanced two bills aimed at improving background checks for gun purchases.

On Wednesday, the FTC announced series of hearings in March and April on competition and consumer protection in the 21st century, some of which are rescheduled sessions from events that were cancelled during the government shutdown. Of note, the Commission will hold a roundtable with state attorneys general on March 25.

Looking Ahead

The House and Senate are scheduled to recess next week for Presidents Day, provided another government shutdown is averted. Senate Majority Leader McConnell (R-KY) is taking steps to bring the so-called Green New Deal non-binding resolution sponsored by Senator Markey (D-MA) and Rep. Ocasio-Cortez (D-NY) to the Senate floor in an effort to put vulnerable Democrats on the record on the controversial proposal. In response, Minority Leader Schumer (D-NY) said that he will attempt to force a vote on an amendment on whether or not climate change is real.

GAO Recommends Federal Privacy Statute as House, Senate Announce Hearings

This week, Energy and Commerce Committee Chairman Frank Pallone (D-NJ) released a Government Accountability Office (GAO) report recommending a comprehensive federal privacy statute. The report, entitled Internet Privacy: Additional Authority Could Enhance Consumer Protection and Provide Flexibility, highlights the importance of a federal statute to enhance consumer protections while maintaining flexibility to address a rapidly evolving internet. GAO outlines a number of specific recommendations to consider in the development of a federal privacy statute. Of note, the agency recommends a notice-and-comment rulemaking under the Administrative Procedure Act (APA) to promote consumer protection and privacy. Further, GAO does not specify whether federal privacy oversight should be assigned to one or multiple agencies.

Alongside the report, Chairman Pallone announced the Consumer Protection and Commerce Subcommittee will convene on February 26 the Committee’s first privacy hearing of this Congress. The announcement came days after Senate Commerce Chairman Roger Wicker (R-MS) announced plans for a full committee hearing on February 27 entitled “Policy Principles for a Federal Data Privacy Framework in the United States.” The Senate hearing will examine Congress’ role in addressing risks to consumers and implementing data privacy protections. “It is this committee’s responsibility and obligation to develop a federal privacy standard to protect consumers without stifling innovation, investment, or competition... I hope this first hearing will offer valuable insights that will help set the stage for meaningful bipartisan legislation,” Chairman Wicker stated.

Meanwhile, consumer data privacy remains at the forefront of state-level policy debates. California Attorney General Becerra’s office continued its series of public forums this week with an event Wednesday in Fresno. The public forums, coordinated to solicit feedback on regulations to be developed under the California Consumer Protection Act (CCPA), will conclude with one final session on March 5 at Stanford Law School. The Legislature will also continue to examine consumer privacy and the CCPA in two upcoming hearings. The Assembly Privacy and Consumer Protection Committee will hold an informational hearing on “Understanding the Rights, Protections, and Obligations Established by the California Consumer Privacy Act of 2018: Where should California go from here?” on February 20. The Senate Judiciary Committee will hold an informational hearing on “The State of Data Privacy Protection: Exploring the California Consumer Protection Act and its European Counterpart” on March 5.

In his “State of the State” speech Tuesday night, California Governor Gavin Newsom praised the CCPA and proposed the establishment of a new “data dividend” for Californians. While the Governor did not outline the structure of the proposed dividend, he suggested that tech companies should share a portion of profits generated through collecting, curating and monetizing consumers’ personal data. “California’s consumers should also be able to share in the wealth that is created from their data,” Newsom said.

President Issues Executive Order Directing Federal Government to Promote Artificial Intelligence

On Monday, President Trump issued an Executive Order directing Federal departments and agencies to promote research and development and use of artificial intelligence (AI) in Federal programs and activities, and to foster industry use of AI through workforce training. He declared that the Federal Government should play “an important role in facilitating AI R&D, promoting the trust of the American people in the development and deployment of AI-related technologies, training a workforce capable of using AI in their occupations, and protecting the American AI technology base from attempted acquisition by strategic competitors and adversarial nations.” 

The EO enumerates six strategic objectives:

  • Promote sustained investment in AI R&D to drive technological breakthroughs
  • Enhance access to high quality and fully traceable Federal data, models, and computing resources
  • Reduce barriers to use of AI technologies
  • Ensure technical standards minimize vulnerability to attacks and promote innovation and public trust
  • Train current and future workforce through apprenticeships, skill programs, and STEM education
  • Develop and implement an action plan in accordance with National Security Presidential Memorandum (Feb. 11, 2019), Protecting the United States Advantage in Artificial Intelligence and Related Critical Technologies

The EO directs OMB to within 90 days to publish in the Federal Register a notice requesting public input on additional requests and access or quality improvements for Federal data and models that would improve AI R&D and testing. Within 180 days, OMB must send a memorandum to agency heads to inform Federal government and industrial sector use of AI and consider ways to reduce barriers to use of AI technologies while protecting civil liberties, privacy, and “American values.” A draft of this memorandum shall be issued for public comment before the memorandum is send to agency heads.

FAA Publishes Three Drone Rulemaking Documents; Remote ID Rule Not Among Them

On Wednesday, the FAA published in the Federal Register an interim final rule (IFR) on external marking of unmanned aircraft, or drones; a notice of proposed rulemaking (NPRM) to allow operations of drones over people; and an advanced notice of proposed rulemaking (ANPRM) on safe and secure drone operations. The long-awaited rulemaking on remote identification was not among the documents published this week. The FAA issued the IFR to address law enforcement concerns around opening up a drone to determine the identity of the owner. The rule requiring the marking to be affixed on the external surface of the drone is effective February 25. Comments are due by March 15.

The operations over people (OOP) NPRM also authorizes operations at night. For operations over people, it proposes three categories based on risk of injury. Drones under .55 pounds are subject to minimal regulation. Drones that weigh more are subject to conditions and limitations that vary depending on whether or not the operation is over an open assembly of persons. The NPRM also proposes to prohibit the operation of a drone over a human being in moving vehicle. This prohibition and the OOP requirements may be waived. Comments are due by April 15.

The safe and secure UAS operations ANPRM asks whether the FAA should address the following subjects in a future proposed rule: standoff distance; payload limitations; altitude, airspeed, and other performance limitations; redundancy of critical design components; and unmanned traffic management (UTM) system operations. Comments are due by April 15.

AIRWAVES Act to be Re-Introduced in House and Senate

Senators Cory Gardner (R-CO) and Maggie Hassan (D-NH) have indicated that they plan to update and re-introduce the AIRWAVES Act, legislation they originally introduced in the last Congress. Gardner and Hassan are updating the legislation given recent work by the Federal Communications Commission (FCC) to move forward with some of the spectrum initiatives identified in the previous version. Senator Gardner also noted there is interest in adding provisions related to satellite spectrum.

Rep. Yvette Clarke (D-NY), Vice Chair of the House Energy and Commerce Committee, also announced last week that the House plans to reintroduce companion legislation. Communications and Technology Subcommittee Chairman Mike Doyle (D-PA) and former Rep. Leonard Lance (R-NJ) sponsored the bill in the last Congress.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Updated: May 25, 2018:

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