The 117th Congress has convened at an inflection point in our nation’s history, unprecedented in more than a century. These are serious times, with the country going into its eleventh month of dealing with the COVID-19 pandemic, unemployment running high, and families facing so many challenges in their work and personal lives. Such times demand serious policy solutions to address a host of structural needs that have languished for far too long. Inaction, the hallmark of the last four years (and frankly longer), can no longer be an effective solution to our nation’s problems. Now, we must act.
Public Knowledge urges members on both sides of the aisle to come together to do the hard work of legislating on a tech agenda that reflects the needs of Americans. Such an agenda must focus on ensuring our residents have access to opportunity through broadband affordability, greater broadband deployment, and digital equity. It will require addressing long, lingering issues in copyright law that the digital age has amplified. It will require focusing on promoting forward-looking technology competition policies, including addressing present market concentration. It means moving forward with meaningful privacy legislation that empowers consumers as the owners of their information.
Broadband Policies
Affordability and Deployment
Public Knowledge urges Congress to provide serious funding to promote both broadband affordability and deployment. As part of the COVID-19 relief package, Congress provided funding for broadband connectivity to ensure low-income Americans and those facing economic hardship due to the crisis could afford to keep or finally connect to broadband service. This was a great start, but once that funding lapses, many Americans that are outside the criteria to qualify for the Federal Communications Commission’s low-income broadband program (Lifeline) will once again face the question of how to afford their broadband service given the other competing needs in their constrained budgets. Even those who do qualify for the Lifeline program only get $9.25 a month – an amount insufficient to pay for many broadband plans. In order to get more people connected, we urge Congress to once again consider taking up the Accessible, Affordable Internet for All Act (“Affordable Broadband Act”). The legislation provides significant funding for broadband deployment; provides subsidies to help Americans pay for broadband service; and includes a mandate that internet service providers offer an affordable option for consumers. This type of legislation is foundational to addressing the digital divide across America, regardless of whether the user is in a rural, suburban, or urban area.
Quality Service for All
In addition to addressing affordability and deployment issues, Congress should ensure that Americans, regardless of where they live in a community, have access to broadband service that is comparable to others in their community. Digital redlining, which occurs when companies select to provide broadband to certain neighborhoods or communities while bypassing adjacent neighborhoods because of demographics or other criteria, must not be allowed to occur, particularly as providers are in the early stages of 5G deployment. Providers should be required to serve everyone in a service area, not just those in well-off neighborhoods. We cannot afford to repeat the mistakes of past deployments and condemn those in less fortunate circumstances to outdated technologies. Congress should also call for reliability standards to address poorly maintained networks in some of our communities, and slow response to outages in others. Finally, as Public Knowledge requested of the FCC this past year, broadband speed needs to meet the needs of users, Congress should call for raising the speed standard to 100/100 Mbps symmetrical.
Digital Equity
The Affordable Broadband Act incorporates the Digital Equity Act, which promotes solutions to help individuals and communities access the technology tools needed for full participation in the society and economy of the United States. It seeks to achieve the goal of full digital inclusion through digital literacy training and financial assistance to families for acquiring broadband-capable devices. This helps ensure that all communities have the tools and means needed to more fully compete and thrive in our ever-increasing broadband economy.
Achieving Our Broadband Objectives
In addition to the important steps Congress can take to promote broadband affordability, deployment, and digital equity, it is critical that there be an expert agency focused on helping to meet Congress’ goals. Fortunately, there is no need to stand up a new federal agency. Instead, the existing federal agency, the FCC — which Congress empowered to “make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges” — needs to reassert its authority to fulfill this mission. The FCC regrettably made the erroneous decision in 2017 to cede much of its authority over broadband, abandoning its mission to promote and advance broadband policies that can fulfill Congress’ charge to connect all Americans. Public Knowledge looks forward to working with Congress — and working with the FCC, whose authority over broadband under Title II has been affirmed by reviewing courts — to correct this error from 2017, so that all Americans have access to “wire and radio communication services with adequate facilities at reasonable charges.”
Copyright Policies
Notice-and-Takedown Regime
First and foremost, Congress must create copyright policy that protects internet users against bogus legal claims that are abusive and require takedowns of lawfully created materials. The current notice-and-takedown system created by the Digital Millennium Copyright Act suffers from a disproportionate number of bad notices that limit the ability of users and creators to use the internet for creativity and free expression, and hide information from public view. This problem is further compounded by platforms creating algorithmic systems that automatically remove speech, rather than doing the difficult work of actually determining if the content in question actually violates copyright. Furthermore, under the DMCA broadband providers are required to turn off a person’s access to the internet if that person has been accused of repeat copyright infringement. The pandemic has made clear that internet access is a necessity, not a luxury. This Congress should prioritize reforming Section 512(a) of the DMCA to ensure that bare accusations of a civil offense can no longer disconnect an entire household from the broader internet.
Right to Repair
Public Knowledge also believes that a general right to repair is crucial both for individual autonomy and institutional resilience. In recent years, software has made its way into more and more goods — from thermostats to tractors to lifesaving medical devices. This software comes with new, restrictive contracts which claim to bar device owners and independent shops from repairing these devices when they break. In practice, this means that farmers lose valuable harvest days waiting for a licensed repair technician, and hospitals cannot repair ventilators that malfunction in the middle of a global pandemic. Proposals to restore a meaningful right to repair must include (1) designing products with repairability in mind; (2) requiring manufacturers to make service manuals and repair parts available; and (3) preventing warranties, terms of service, and consumer contracts from limiting consumer rights in this area.
Controlled Digital Lending
We also call on this Congress to consider codifying Controlled Digital Lending (CDL), which is a fair use framework under which libraries, archives, schools, universities, consortia, and other institutions loan digital copies of works that they already have in their physical collections. CDL allows an institution to scan a book, digitize the page image as a searchable PDF, and loan the books out in a one-to-one owned-to-loaned ratio. As a fair use under Section 107 of the Copyright Act, this practice does not violate exclusive rights under copyright law; however, because fair use is a four-factor test that can only be definitively determined by litigation, many institutions are hesitant to adopt these basic, common-sense practices for fear of being sued. Moreover, because of the endemic funding crisis facing libraries, archives, and schools, the prospect of copyright’s massive statutory damages (up to $150,000 per instance) is enough to chill even the most diligent institution from instituting basic CDL. We believe that clear statutory language, clarifying that CDL is not a copyright violation, would provide certainty to lending institutions and encourage more widespread adoption.
Platform Competition Policies
During the last Congress, the House Judiciary Committee’s Antitrust Subcommittee committed itself to a bipartisan investigation into the state of competition in the digital economy. That investigation culminated in a report that outlined a series of business practices undertaken by four dominant players (Facebook, Google, Apple and Amazon) that helped these companies obtain and then maintain their market power in ways that are anticompetitive. The abuses outlined in the Committee’s report signal the urgency of acting in the next Congress to bring about changes not only to promote competition but to protect consumers from the abuses the Committee found.
Privacy and Data Protection
In addition to new laws to promote competition on and against dominant digital platforms, Congress must move forward on federal privacy legislation to ensure these companies are restricted in their data collection practices and consumers have control over their information so they can correct it, delete it, move it, or have it accessible for whatever alternative service they choose. A critical component is to provide consumers greater control over their personal information, an input that has been mined with little to no guardrails and with inadequate user controls. As Sen. Richard Blumenthal (D-CT) has noted, it simply cannot be that consumers in the European Union or those in California are more deserving of privacy protections than other Americans.
Congress strived in the last Congress to move forward, through real and difficult negotiations, to complete a federal privacy law. They got close, but fell short. There were many areas of agreement, in terms of consumer controls, but the sticking points were just too much. Public Knowledge urges Congress to pick back up its work on federal privacy legislation and restart these discussions understanding that consumers are demanding privacy. These privacy policies would put obligations on companies to not collect personal data beyond what is needed (data minimization), and would allow consumers both access and rights to the data that is collected about them — including the right to correct, delete, and port that data. Such privacy legislation is beyond the nation’s current consent structure that has been debated for decades and is more reflective of the rights consumers need in today’s market. A number of proposals in the 116th Congress reflected this understanding and Public Knowledge believes if lawmakers redouble their efforts, they can overcome the remaining obstacles to federal privacy reform. We welcome a dialogue to assist in moving this forward.
Misinformation
The ability to precision-target content based on user data has amplified the problem of misinformation on digital platforms. Effectively managing misinformation and the real-world harms it can cause entails both reducing misinformation and elevating authoritative information. Public Knowledge created a policy proposal that alleviates the twin problems of our information ecosystem: the virulent spread of misinformation on digital platforms, and the crisis in local journalism. Our “Superfund for the Internet” proposal would compel platforms to include a fact-checking process in their content moderation, while providing a new source of revenue for local journalism. It establishes a federal “trust fund” administered by an independent government body that would be funded through a user fee imposed on digital platforms that meet certain standards. That fund would encourage the development of fact-checking services as a new source of revenue among qualified news organizations. We look forward to working with Congress to implement this proposal.
Platform Regulation
Public Knowledge will continue to advocate for reforms to the digital marketplace that will both address the power of platforms and empower and protect consumers. Interoperability, which would enable different systems and organizations to communicate with each other, is one such reform that both limits network effects, which lock consumers into platforms, and provides consumers greater control over their data. In addition, reforms such as non-discrimination requirements could ensure that fair, consistent, and transparent access for firms that are vertically reliant on platforms for access to reach consumers, helping to curb anticompetitive discrimination and even facilitate competition against these platforms.
Ultimately, the U.S. needs a regulator that has the expertise and the tools to address the problems posed by big platforms — from content moderation, to competition, to privacy and consumer protection. Such a regulator does not yet exist. Public Knowledge will continue to advocate for the creation of such an agency.
Conclusion
Although there are challenges beyond technology that this Congress will have to address, the long-term health of our economy — which is a digital economy — requires action. Issues like the digital divide, harmful copyright regimes that impact users, the power of dominant platforms, and consumer privacy abuses clearly demonstrate that Congress needs to engage and find solutions to correct these failings if we’re to recover as a nation.
Image credit: Wikimedia Commons user Jmarcosny