Key Tech Takeaways from Hearing on Biden’s Nominee for Commerce Secretary

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[co-author: Nicole Hager]

On January 26, 2021, the Senate Commerce, Science, and Transportation Committee (the Committee) held a hearing on the nomination of Rhode Island Governor Gina Raimondo, to be the Secretary of Commerce). Wiley’s Telecom, Media, and Technology Practice, with the National Security practice, are following developments at the Department of Commerce and identify herein a few notable comments and exchanges that may be relevant to several open tech issues before Commerce.

Nominee Raimondo Indicated She Would Be Tough on China but Avoided Policy Commitments. The tech sector and many parts of the U.S. economy (not to mention governments and businesses overseas) are eager to see what the Biden Administration will do with several China-related proceedings. Gov. Raimondo emphasized that national security has to come first and that the Biden Administration is pursuing a whole-of-government approach. With respect to 5G, she said the United States can’t let China or any other country have a backdoor to our networks, which will compromise our national and economic security. She said she will use the “entire toolkit” to combat China to its fullest extent. However, in response to a question from Senator Cruz, she did not commit to keeping any particular Chinese company, including Huawei, on the Entity List. She also committed to working with our allies on our China approach. In response to Senator Blackburn, Raimondo committed not to nationalize a 5G network.

Expanding 5G, Broadband Access are Bipartisan Priorities for the Committee. The Commerce Department plays an important role in several efforts related to 5G and broadband in several components including the National Telecommunications and Information Administration (NTIA). At the hearing, most of the discussion around NTIA was around the importance of getting broadband to un- and underserved communities, especially during the pandemic. In response to a question from Senator Thune about how to resolve conflicts between NTIA and the FCC, Gov. Raimondo expressed support for finding/freeing up additional publicly and privately held spectrum for 5G. She also assured Senator Capito that broadband mapping would be a priority and she would work with stakeholders to assess needs on the ground.

Privacy Is and Will Be a Major Issue. Commerce plays a role in coordinating Administration positions on privacy regulation and works with several federal agencies on international issues that touch U.S. federal privacy policy. Notably, Senator Wicker wants Privacy Shield negotiations wrapped up quickly. The first policy that Chairman Wicker in raised in his questioning was the EU/U.S privacy negotiations, which several other senators also emphasized was a priority. Gov. Raimondo noted that reaching an agreement quickly was a priority for her as well and that she understood that negotiations were going well.

Section 230 Reform Remains on the Table. The past few months saw high profile policy debates around reform or repeal of Section 230’s liability protections for providers of interactive computer services. NTIA played a role in controversial parts of those discussions at the end of the Trump Administration but observers are eager for an indication of this Administration’s priorities. In questioning from Senator Johnson, Gov. Raimondo said that she believes in competition and that the law should be reformed, but that was a job for the FTC and Congress. She did say that if NTIA was involved, she would use its resources to convene stakeholders and industry and that she would consult Congress before moving ahead with any reform. She emphasized that these platforms rely on user generated content and that they’ve created thousands of jobs, noting it’s a “complex” issue.

NIST’s Continued Role in Standards Setting and Emerging Technologies. Several policymakers have been calling for greater federal government and private sector activity in global standards work on technologies, like 5G. Some of these calls are controversial and may merit further consideration. This was raised at the hearing, and in response to Senator Young, Gov. Raimondo said that NIST has a huge role to play in standards setting. We expect NIST’s role to continue and expand, and we have explained the nuts and bolts of it, along with key policy considerations in a paper for the National Security Institute. America needs to lead, especially as it relates to new technology like AI and blockchain. Senator Baldwin asked about the Trump Administration’s last minute NIST rule to limit the government’s ability to exercise its “march-in rights.” This rule would reform administration of the Bayh-Dole Act, which lets the government take ownership of patents it helped fund or require that companies provide licenses. Raimondo committed to working with Sen. Baldwin but did not make any promises regarding the future of the rule. She also agreed with Senator Rosen that building our cyber workforce is important but did not discuss this in much detail.

Net Neutrality will remain a flashpoint. We expect so-called “net neutrality” to be a hot topic once again at the federal level. Commerce can have input, but activity may end up focused in Congress, the FTC and FCC. This was raised in the hearing. Responding to a question from Senator Johnson on net neutrality, Gov. Raimondo indicated she is in favor of “policies that create a level playing field” and that she would work with Johnson “to the extent that Commerce is involved.”

Continued Interest Strengthening the Semi-Conductor Supply Chain. In response to a question from Sen. Sinema, Raimondo said that the United States needs a whole-of-government approach to semiconductor manufacturing, as it is essential for economic and national security.

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This hearing demonstrates the breadth of issues that will remain before the Commerce Department, many of which will be of significance to innovators and the broader tech sector.

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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