Sens. Charles Grassley (R-Iowa) and Amy Klobuchar (D-Minn.) signaled this week they will be introducing an antitrust-centric bill, the American Innovation and Choice Online Act, that would prevent tech platforms from favoring their own products or services, including by disadvantaging their rivals by biasing search results in favor of the dominant platform.

While no names were mentioned in the bill, Google, Amazon and Apple have all been the targets of criticism for favoring their own products and services. The bill is something of a break from the Facebook-centric aim of much of D.C. following the whistleblower revelations about that company in the past few weeks.

Also Read: Facebook's Big Tobacco Moment on the Hill

Klobuchar, chair of the Senate Antitrust Subcommittee, has been calling for Congress and the Federal Trade Commission to tighten scrutiny of Big Tech deals, arguing as have others that some of the biggest companies appeared to have bought up to monopoly by scooping up potential competitors before the deals were large enough to trigger scrutiny under the 1976 Hart Scott Rodino antitrust bill.

Specifically, according to Grassley's office, the bill would:

1. “Prohibit dominant platforms from abusing their gatekeeper power by favoring their own products or services, disadvantaging rivals, or discriminating among businesses that use their platforms in a manner that would materially harm competition on the platform; and
a. “Prohibit specific forms of conduct that are harmful to small businesses, entrepreneurs, and consumers, but that do not have any pro-competitive benefit, including:
i. “Preventing another business’s product or service from interoperating with the dominant platform or another business;
ii. “Requiring a business to buy a dominant platform’s goods or services for preferred placement on its platform;
iii. “Misusing a business’s data to compete against them; and
iv. “Biasing search results in favor of the dominant firm.
 
2. “Give antitrust enforcers strong, flexible tools to deter violations and hold dominant platforms accountable when they cross the line into illegal behavior, including significant civil penalties, authority to seek broad injunctions, emergency interim relief, and potential forfeiture of executive compensation.
 
3. “Prevent self-preferencing and discriminatory conduct by the most economically significant online platforms with large U.S. user bases which function as 'critical trading partners' for online businesses. For such platforms, the rules target harmful conduct, allowing the platforms to innovate, do business, and engage in pro-consumer conduct, including protecting user privacy and safety, preventing unlawful behavior, and maintaining a secure online experience for users.”

Said Klobuchar: “As dominant digital platforms — some of the biggest companies our world has ever seen — increasingly give preference to their own products and services, we must put policies in place to ensure small businesses and entrepreneurs still have the opportunity to succeed in the digital marketplace.”

“Big Tech needs to be held accountable if they behave in a discriminatory manner,” Grassley said.

Sen. Josh Hawley (R-Mo.), who supports the bill, said co-sponsores include Dick Durbin (D-Ill.), Lindsey Graham (R-S.C.), Richard Blumenthal (D-Conn.), John Kennedy (R-La.), Cory Booker (D-N.J.), Cynthia Lummis (R-Wyo.), Mazie Hirono (D-Hawaii), and Mark Warner (D-Va). 

A similar bill was introduced in the House by Antitrust Subcommittee Chairman David  Cicilline (D-R.I.) and ranking member Ken Buck (R-Colo.), which has already been voted out of the House Judiciary Committee, according to Hawley.

Under a proposed new law, if the algorithm of a Twitter or Facebook promotes vaccine misinformation and disinformation on their sites, edge providers will be considered publishers of that content, and thus liable for it.

With vaccine/COVID-19 misinformation a hot topic in D.C. and at the White House, Sen. Amy Klobuchar (D-Minn.) and Sen. Ben Ray Luján (D-N.M.) has introduced a bill, the Health Misinformation Act of 2021, that would remove Section 230 civil civil liability protection for third-party content from edge providers whose algorithms promote that misinformation.

“For far too long, online platforms have not done enough to protect the health of Americans,” said Klobuchar in a statement. “These are some of the biggest, richest companies in the world and they must do more to prevent the spread of deadly vaccine misinformation. Earlier this year, I called on Facebook and Twitter to remove accounts that are responsible for producing the majority of misinformation about the coronavirus, but we need a long term solution. This legislation will hold online platforms accountable for the spread of health-related misinformation. The coronavirus pandemic has shown us how lethal misinformation can be and it is our responsibility to take action.”

What will constitute health misinformation subject to the law. The Secretary of Health & Human Services, "in consultation with the heads of other 18 relevant Federal agencies and outside experts determined 19 appropriate by the Secretary, will get to make that call.

Also Read: Facebook to D.C. on Sec. 230: Regulate Us, Please

Although he has since said he was talking about the misinformers, not the messenger, President Biden said vaccine misinformation on Facebook is killing people.

Facebook called the comments unsupported accusations that are a distraction from its effort to save lives.

The White House has been in talks with media outlets and Big Tech players over the vaccine misinformation issue as the Delta variant pushes COVID-19 infection numbers up, while vaccine rates have gone down.

Sen. Amy Klobuchar (D-Minn.) outlined an aggressive plan to legislate a “competition policy” that she envisions will be accompanied by increased antitrust enforcement, especially in the technology and digital platform sector.  In the closing keynote address to the State of the Net conference on Wednesday, she voiced concern that America could “emerge from this pandemic with markets that are more concentrated and less competitive than before this crisis.”

“Even before the pandemic, it was clear that America has a major monopoly problem,” she said. “It's a problem that threatens the strength and dynamism of our economy,” she added, calling it a “plague on our tech market.”

As a member of the Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights and of the Communications, Technology, Innovation and Internet subcommittee of the Senate Commerce Committee,  Klobuchar is well positioned to lead this anti-monopolist assault.

Klobuchar, in pre-recorded remarks, told the virtual SOTN event that, “Antitrust law isn't the only potential tool we have to foster the kind of competition we need.”  She is pushing the term “competition policy” (a term she uses in her forthcoming book on the topic).

Also Read: Klobuchar Bill Would Provide New Antitrust Tools to Address Edge Giants

“That distinction is particularly important in digital markets, which are relatively new and largely unregulated,” she explained, adding that the new leadership at the antitrust agencies plus the Democratic majorities in the Senate and the House enable policymakers to make such objectives “a priority for the first time in decades.”

She said the government must play a role when so much technology power is “controlled by a handful of companies that have amassed unprecedent power gateways … over our personal data,  power over what ads we see [and] what news we watch.”

Also Read: Michael Powell Pitches FCC Unity

Klobuchar acknowledged that Congress is “not as sophisticated as the companies that we should be regulating.”

“So we need to start by working to strengthen antitrust enforcement and making it more effective,” she explained, noting that she’s heard complaints “about the big tech platforms using their dominance to undermine rivals and limit competition for a long time.”

“Unfortunately, it took years for the antitrust agencies to get serious about enforcement in the tech center,” Klobuchar said.  She noted that recent Justice Department and Federal Trade Commission actions against Google and Facebook, with the support of state Attorneys General, may open the doors for “structural relief.”  She envisioned a “break-up remedy” that could separate assets and engender competition among the offspring, citing her early career experience as a young lawyer working on behalf of MCI during the break-up of the Bell System and the old AT&T.  She contended that breakups aren’t necessarily “radical. They're one way to deal with a competition issue.”

Confronting Judicial Barriers

“It's no secret that our increasingly conservative federal judiciary has been more antagonistic to antitrust enforcement, raising the procedural and evidentiary bar for government and private enforcement,” she fretted, citing a former Justice Department official who observed no plaintiff has won an antitrust case before the Supreme Court in more than 15 years. The Minnesota Senator also pointed out that the DoJ’s roster of antitrust lawyers has dropped from 453 to about 330 during the past 40 years.  At the FTC, the legal staff has receded even further:  from 1,719 to 1,102 during a similar stretch (1980 to 2018).

“How are you going to be able to take on these big tech companies, much less others, if you don't have the resources?” Klobuchar asked. She explained that increased filing fees for megamergers would generate revenue to beef up enforcement staffing.

“If we want our enforcers to be able to go toe-to-toe with the largest, most sophisticated trillion-dollar companies in the world, we shouldn't force them to operate on a shoestring,” she said. Klobuchar cited her proposed “Consolidation Prevention and Compassionate Competition Promotion Act” as a way to strengthen the current legal standards in the Clayton Act by updating legal standard to prohibit anti-competitive mega-mergers. “The bill shifts the burden to those dominant firms to prove that their exclusionary conduct doesn't risk harming competition.”

There is bipartisan concern on Capitol Hill that a fertility app may be fertile ground for privacy violations.

Citing an investigation by the International Digital Accountability Council (IDAC) that found mobile app Premom may have compromised its users' privacy, Sens. Amy Klobuchar (D-Minn.) and Jerry Moran (R-Kan.) have asked the FTC to investigate.

In a letter to FTC chairman Joseph Simons, they said Premom may have used deceptive practices in their "troubling" data collection and sharing. The senators are particularly concerned that the app apparently shares user data without their consent.

The mobile app allows users to track fertility cycles to figure out the best time to try and get pregnant, using personal and private health data. The senators said the app has been downloaded a half-million times and is a top fertility app search in the Apple and Google Play app stores.

Joining in the letter to Simons were Sens. Maria Cantwell (D-Wash.), Richard Blumenthal (D-Conn.), Shelley Moore Capito (R-W.Va.), Elizabeth Warren (D-Mass.), and Mark Warner (D-Va.).

The senators want answers to the following questions:

1. "Does the FTC treat persistent identifiers, such as the non-resettable device hardware identifiers discussed in the IDAC report, as personally identifiable information in relation to its general consumer data security and privacy enforcement authorities under Section 5 of the FTC Act?

2. "Is the FTC currently investigating or does it plan to investigate Premom’s consumer data collection, transmission, and processing conduct described in the IDAC report to determine if the company has engaged in deceptive practices?

3. "Does the FTC plan to take any steps to educate users of the Premom app that the app may still be sharing their personal data without their permission if they have not updated the app? If not, does the FTC plan to require Premom to conduct such outreach?

4. "Please describe any unique or practically uncommon uses of encryption by the involved third-party companies receiving information from Premom that could be functionally interpreted to obfuscate oversight of the involved data transmissions."

5. "How can the FTC use its Section 5 authority [over unfair and deceptive practices] to ensure that mobile apps are not deceiving consumers about their data collection and sharing practices and to preempt future potentially deceptive practices like those Premom may have engaged in?"

On its Web site, Premom parent Easy Healthcare Corp. said it is "committed to safeguarding any information or data that may be collected through our site or mobile application and to ensuring that you are fully informed as to how your information will be used."

It also points out on its Web site that Silicon Review magazine named it one of the top 50 most trustworthy companies of 2020.

FCC chairman Ajit Pai continues to make it clear that, as he reads the law, the FCC cannot use E-Rate subsidies for school and library connectivity for home broadband for distance learning.

E-Rate is the Universal Service Fund advanced telecommunications subsidy for high-speed broadband access for schools and libraries. 

Related: FCC Working with DOE to Promote Ed Tech Funding Availability

He spelled out his position in a letter to Sen. Amy Klobuchar (D-Minn.) the FCC has released. 

Pai said he recognizes that schools have had to change the way they teach due to the pandemic and that "it is critical that parents and students stay connected so that they can participate in online learning from home during this crisis."  

But he remains adamant that the language of the statute is clear. 

"[W]e face a major barrier: The Communications Act, which the FCC is duty-bound to administer. He said the Act "expressly limits the FCC's use of E-Rate program funding to broadband and other services delivered to school 'classrooms' and libraries. Connectivity and devices supplied to students at home unfortunately do not qualify for E-Rate support under the law." 

Related: Educators Say Distance Learning Dollars, Equity, Are Keys to Reopening Schools

Sen. Richard Blumenthal (D-Conn.) suggested to Pai during an FCC oversight hearing that his reading was too narrow and Congress was OK with him interpreting classroom to mean the new home classroom necessitated by COVID-19, but Pai didn't budge. But he has told Congress he would be happy to spend the E-Rate money on distance learning if Congress changes the statutory language. 

Related: Senate Dems introduce $4 Billion E-Rate Bill 

Pai pointed out to Klobuchar, as he has to others, that there is $16 billion in CARES Act COVID-19 aid funding that states and localities can tap for home connectivity if they choose. He said there is also $3 billion in emergency grants in the Governor's Emergency Education Relief Funds that could be used for remote learning.

He said the FCC has been working with the Department of Education to educate schools on the availability of that local funding.

Sen. Amy Klobuchar (D-Minn.) wants Congress to investigate the Administration's treatment of protesters and journalists. 

At a committee business meeting, Klobuchar called Thursday (June 11) for Senate Judiciary Committee chairman Lindsey Graham (R-S.C.) to hold hearings, with Attorney General William Barr as a witness, on federal officer's use of "chemical gas and rubber" bullets on protesters in Lafayette Park (in front of the White House). 

"[I]t is the responsibility of this committee to examine the federal government’s response to protesters, as well as the deployment of federal law enforcement in Washington, D.C., and the treatment of journalists covering the protests,” she said. 

The Senate Judiciary Committee convened its first-ever COVID-19 era hearing Wednesday (May 6), and it was a contentious one. 

The subject of the hearing was not actually COVID-19-related, a point unhappy Democrats made repeatedly, but the vetting of President Trump's nominee, conservative Kentucky District Court Judge Justin Walker, to fill the Supreme Court Justice Brett Kavanaugh's vacant seat on the U.S. Court of Appeals for the D.C. Circuit. 

The D.C. appeals court is the court of principal jurisdiction for challenges to FCC decisions.  

Walker is a former clerk for Kavanaugh when he was on the D.C. court and was an intern for Sen. Majority Leader Mitch McConnell. 

He is currently a judge on the U.S. District Court for the Western District of Kentucky. Before that, he was a professor at the Brandeis School of Law (University of Louisville). 

Sen. Lindsey Graham (R-S.C.) counted down to the hearing's start, awaiting teleconference participants, as the online audience saw legislators, some newly bearded, separated by far more than six feet, including those participating by video conference.  

For his part, Graham said he thought Walker was well qualified. Given that Republicans control the Senate, Walker is likely to make it to the bench, as he did to the district court last year after a Senate Judiciary confirmation hearing in which he received no Democratic votes.

Democrats suggested that Walker, at 37 and with only six months as a district judge, was too inexperienced to get a seat on the second most important court in the land, one whose decisions set national precedence--and from which a number of judges in addition to Brett Kavanaugh have been tapped for the Supreme Court. 

Sen. Diane Feinstein (D-Calif.) signaled she thought Walker was unworthy of a lifetime appointment given his dearth of bench experience. Sen. Dick Durbin (D-Ill.) said that if they were going to be summoned back from shelter-in-place, it should have been to deal with the current national emergency, say, dealing with thousands of healthcare workers with uncertain immigration status, or how the election is going to be run, or getting more protective gear for first responders.  

Related: COVID-19 Crisis Hits Industry

Durbin said that if he asked Americans what the highest priority of the committee should be, it would not be this nominee, though he said he was sure it was the priority of Sen. McConnell. Durbin said he had still come, perhaps at some personal risk to himself. 

Sen Mike Lee (R-Utah) said it was acceptable, appropriate and necessary that the Senate return to the Capitol. He said if doctors and nurses and grocery store workers and truck drivers could be working 24/7, lawmakers could return from a six-week recess. "You can't pretend to legislate when Congress is out of session," he says. 

Sen. Patrick Leahy (D-Vt.) was the first to weigh in via videoconference--the audio was a bit cavernous. He echoed the concern that a judicial nomination was on the top of the committee's list during a pandemic. 

Sen. John Cornyn (R-Tex.), who pointed out, in response to Feinstein's concerns about appellate inexperience, that there were numerous judges, including on Supreme Court, that had an academic, rather than appellate history. He said he thought that given the importance of judges, it was not inappropriate to start their return work there, that they could deal with those other important issues as well, and that they could "walk and chew gum" at the same time. 

Walker, who clerked for Kavanaugh on the D.C. circuit, said he was unabashed in his defense of that judge's view of the law, which meant the separation of powers, the limited role of judges and their fidelity to text. "It is my job to go where the law leads," he said, saying he was an "unabashed originalist."  

Walker declined to get too deeply into the issue of Chevron deference and whether courts had become too deferential to agency decisions. The Chevron doctrine is the Supreme Court precedent that courts give added weight to an agency's subject matter expertise. But he did signal that he would follow the law, even if it mean ruling against "great policy/"  

Walker was asked when a judicial branch should defer to the executive branch--so-called Chevron deference. He said if a statute is clear, a regulation is valid or invalid. But if it is ambiguous, a judge considers whether an agencies interpretation is reasonable, if so it is upheld, if not, a regulation is invalid. 

Walker said it was not for him to critique binding precedents of the Supreme Court. It is still absolutely good law, he said. As an academic, before he became a judge, he said, he predicted where the Supreme Court might go, including not applying Chevron in some cases, but as a sitting judge now, and hopefully on the D.C. appeals court, he was bound by Chevron. 

Sen. Amy Klobuchar (D-Minn.) also weighed in remotely, and also said she thought they should he dealing with some other issue, like perhaps COVID-19 in prison and its impact on prisoners and guards. But she did thank Graham for allowing for remote participation. 

She brought up the Chevron doctrine and asked if Walker thought a judge is better positioned than an agency to weigh in on complicated issues. He said he was not running away from his scholarship as an academic and that there was a rigor of analysis that showed how he was trying to look at the facts, case by case. 

Klobuchar said that a third of the D.C. circuits are about agency appeals and that his academic writing did suggest how he would approach the Chevron doctrine. Klobuchar said he midnight have been making an academic argument, but she feared he would let judicial opinions trump agency expertise.  

Walker said that in terms of judges reviewing agency actions, it is never the role of the judge to second-guess a political policy decision, especially when it comes from agency expertise. But he said it is always a judge's role to say what the law is, and when an agency has issued a regulation that is not supported by statute, to find that it is invalid, even if that regulation was great policy."  

Sen. Sheldon Whitehouse (D-R.I.) also weighed in remotely, pressing Walker on who coordinated his many TV and radio appearances (Durbin said there were some 162 appearances) in defense of Kavanaugh during his Supreme Court nomination gauntlet.  

Walker said he was asked by, and advised by, an old friend, Matt Lattimer, to make statements about Kavanaugh on cable news outlets.

Sen. Amy Klobuchar (D-Minn.) signaled her husband, John Bessler, is back at home and on the mend after being hospitalized for COVID-19. 

“Thanks to all who sent kind words and prayers for my husband John. He has coronavirus and has been in the hospital for pneumonia and low oxygen," she said in a statement. "He took a good turn, was just released and is now recovering at home. Thanks to those who cared for him and for all front line health care workers.” 

A handful of legislators have tested positive for the virus, most recently Sen. Rand Paul (R-Ky.), who got criticism for reportedly having gone to the Senate gym and elsewhere between the time he got the test and the results, a test he said he took out of an abundance of caution. 

Complete Coverage: The Coronavirus Pandemic

The vote on a $2 trillion-plus coronavirus stimulus bill was approved unanimously Wednesday night (March 25), but without a few votes because those senators were self-quarantining and couldn't make it to the floor. 

Klobuchar has said she does not plan to get tested for the virus.  

"Since John and I have been in different places for the last two weeks and I am outside the 14-day period for getting sick, my doctor has advised me to not get a test," she said earlier this week. "As everyone is aware, there are test shortages for people who need them everywhere and I don’t qualify to get one under any standard."  

A bipartisan rural broadband bill has been introduced by more than two dozen senators led by Sen. Amy Klobuchar (D-Minn.).

The Keeping Critical Connections Act is meant to make sure small broadband providers can ensure that students and their families can stay connected to broadband during the pandemic via continuing to offer free or discounted broadband.

Specifically, the bill would set aside $2 billion for a Keeping Critical Connections fund at the FCC. Smaller broadband providers (fewer than 250,000 customers) could tap that fund for providing "free or discounted broadband services or upgrades" to low income resident during the pandemic or for providing distance learning to students.

“Access to high speed internet is critical for students and their families during the coronavirus outbreak,” Klobuchar said of the new bill. She said it would make sure rural families and students stay connected to work school and community "during this period of economic turmoil..."

Klobuchar's office said the bill is backed by NTCA—the Rural Broadband Association, WTA – Advocates for Rural Broadband, Wireless Internet Service Providers Association (WISPA), the Minnesota Telecommunications Alliance, and the Broadband Association of North Dakota.

ACA Connects, which represents smaller operators, said Tuesday (March 24) that its members have taken numerous steps to keep its customers connected during the coronavirus crisis, including some who are providing "60 days of free standard high-speed Internet service and free installation to any home that is the primary home of a student in kindergarten through high school, in technical school, in college or in graduate school."

“ACA Connects supports the approach taken by Sens. Klobuchar and Cramer in the just-introduced Keeping Critical Connections Act," said an ACA Connects spokesperson. “If ACA Connects members are to continue maintaining service for existing customers and connect customers in need -- especially in higher cost rural areas -- and keep investing in network infrastructure to meet the surging amounts of traffic caused by the emergency, the government must be there as a backstop for all of them – and this legislation helps achieve that aim.”

Signing on to the bill in addition to Klobuchar were Sens. Kevin Cramer (R-N.D.), Tina Smith (D-Minn.), Dan Sullivan (R-Alaska), Tammy Baldwin (D-Wis.), Steve Daines (R-Mont.), Doug Jones (D-Ala.), Lisa Murkowski (R-Alaska), Jon Tester (D-Mont.), John Barrasso (R-Wyo.), Pat Roberts (R-Kan.), Jacky Rosen (D-Nev.), Todd Young (R-Ind.), and Gary Peters (D-Mich.). 

The stock of Sen. Amy Klobuchar (D-Minn.), a veteran Senate Commerce Committee member familiar to communications industry stakeholders, for a VP spot has risen with the announcement of former Vice President Joe Biden that he is definitely picking a woman for that post.

Washington Post editorial writers handicapped the VP race, with ex-presidential candidates Klobuchar and Sen. Kamala Harris of California tied at the top. But that was before Biden announced that he would also be naming an African-American woman to the Supreme Court. If Biden wanted to woo followers of a couple of former opponents, he could name Harris, an African-American woman, to the court, and tap Klobuchar for the VP spot.

As a member of the Senate Commerce Committee, Klobuchar has supported bills to re-regulate cable franchise fees and create a privacy bill of rights. She has long been a big supporter of "dig once'' policies directing broadband deployments to be coordinated with road construction/improvements. She also pushed for the The Honest Ads Act, which creates online political ad public files and bars foreign entities from ad buys.

Sen. Amy Klobuchar (D-Minn.) plans to join South Bend Mayor Pete Buttigieg and billionaire financier Tom Steyer in exiting the Democratic presidential race before Super Tuesday (March 3), according to various news outlets including CNN. 

But her TV ads are a gift that keeps on giving to media outlets. In a commercial break in a CNN newscast on Klobuchar's exit, there was Klobuchar talking in an ad about the kind of President she would be. 

Related: Klobuchar Proposes Aggressive Election Counter-Interference Operation

Email solicitations from the campaign were still going out midday seeking contributions to the Klobuchar candidacy, but that was also the case with the campaign of Buttigieg Sunday (March 1), even as he was dropping out. 

Klobuchar is a familiar face to media companies. The senator recently supported a bill that would re-regulate cable franchise fees, and one that would created a privacy bill of rights. She has long been a critic of media consolidation and supporter of "dig once" policies directing broadband deployments to be coordinated with road construction and improvements. 

She had also promised universal broadband access by midpoint of a Klobuchar presidency. 

Look for Klobuchar to continue to be involved in election issues, at least in pushing for her Honest Ads Act. 

The Honest Ads Act, which was proposed in the wake of that 2016 meddling and introduced two years ago in tandem with Sen. Mark Warner (D-Va.), ranking member of the Intelligence Committee, would create online political ad public files (Facebook has already voluntarily created one of those) and bar foreign entities from ad buys to influence elections. 

The Harvesting American Cybersecurity Knowledge through Education (HACKED) Act passed the Senate Commerce Committee Wednesday (Nov. 13) with an amendment that would create a cybersecurity exchange program between government and industry.

The bill, which is co-sponsored by the bipartisan leadership of the committee and Communications Subcommittee, is meant to boost cybersecurity education and workforce.

The bill includes an amendment from Sen. Amy Klobuchar (D-Minn.) that would establish "a public-private cyber security professionals exchange program" that would recruit experts in the private sector and academia to join the federal government for up to a two-year hitch. On the other side, government computer experts would do "tours of duty in the private sector," in both cases to learn from each other and apply that knowledge to "help further secure government computer systems and critical infrastructure."

“With more than 300,000 cybersecurity job vacancies in the United States, ensuring that workers now and in the future have access to cyber education is a priority,” said ITI President Jason Oxman in a statement. “The bipartisan HACKED Act takes important steps to help fill this critical skills gap and bolster the U.S. cybersecurity workforce through long-term planning and investment."

Senator and presidential candidate Amy Klobuchar (D-Minn.) took to the Senate floor to call for passage of the Honest Ads Act as well as election security generally. 

Her bill would mandate disclosures on online political ads similar to those for broadcast and MVPD ads and newspapers.  

Intelligence officials are once again sounding the alarm that adversaries are using social media to undermine the upcoming elections," she told her colleagues in her floor speech. "Just yesterday, Facebook announced that it removed a network of Russian back accounts posing as locals weighing in on political issues in swing states. It never ends. Russia has a playbook that they and they are using it to attack us. 

“We have to stop them. So how do we do this? Well, I have a very good solution. The Honest Ads Act, my bill with Senators Graham and Warner. The goal is simple, bring our laws into the 21st century to ensure that voters know who is paying to influence our political system.” 

Last week, Klobuchar called on Republican chairman of the Senate Rules Committee Roy Blunt (R-Mo.) to schedule an "immediate" markup of the bill. 

Klobuchar's call for action came in the wake of a bipartisan Senate Intelligence Committee report released two weeks ago that concluded Russians used social media posts and ads to try and get Donald Trump elected in 2016 and would be trying to meddle in the 2020 election as well, where Klobuchar hopes to be running against the President.  

The Senate Antitrust Committee heard from various parties Tuesday (Sept. 24) on whether Big Tech companies have been allowed to become serial innovation killers, buying up tech start-up competitors before those competitors are large enough to raise red flags with regulators. 

An FTC witness said the agency was definitely retrospectively reviewing such "killer acqs" (acquisitions), and could break up or shake up already-merged companies if that is the appropriate structural remedy. 

"The latest round of technology-driven disruption, instigated in significant part by digital platforms, has caused some to question whether our competition laws and enforcement approaches can continue to protect consumers from anticompetitive conduct and mergers in fast-paced markets characterized by technological change," said witness Bruce Hoffman, director of the FTC's Bureau Of Competition (pictured above). The FTC has created a tech task force to look answer that question.  

But he also suggested the FTC is aware of the potential to buy up to monopoly. "[T]he Commission pays particularly close attention when an industry leader seeks to acquire an up-and-coming competitor that is changing customer expectations and gaining sales," he said, including when the relevant product is data. 

Diana Moss, president of the American Antitrust Institute, suggested antitrust enforcement has been weak and more attention needed to be paid to mergers "that are not reportable under the HSR requirements and smaller, reportable transactions that are likely to fly below the antitrust radar." 

Patricia Nakache, general partner with venture capital firm, Trinity Ventures, warned that if the government is too heavy handed in preventing established firms from buying start-ups, it could hurt innovation. She pointed out that an incumbent company could acquire a company "for its technical talent, for a new product that it can sell to existing customers, or to enter an entirely new business." She said in those situations, "the government should not seek to stifle or slow those transactions." 

Venture capital firms are more likely to invest in a serial entrepreneur's next big idea if he has a track record of starting up a business then selling it to a large incumbent. 

Sen. Mike Lee (R-UTah), chairman of the committee, said that over-enforcement is not a "cost-free" proposition." He conceded that some mergers may be for antiompetitive reasons, but because they can't see the future, it is difficult to predict in advance which deals should be blocked--Instagram, for example, versus some similar effort that does not gain traction.  

Witness Professor John Yun, of the Antonin Scalia Law School at George Mason University said he did not think there has been a systematic government bias for allowing Big Tech to buy up to dominance 

Hoffman agreed that he did not see any data that showed such systematic bias. He said the FTC is looking to see if there were some transactions that should have raised flags, but didn't. 

Sen. Amy Klobuchar (D-Minn.) said the hearing was prompted by lack of agency action on start-up purchases. Moss said her institute looked at 700 mergers by the Big Five tech firms, with only one of those challenged. She said factors in underenforcment is that agencies have not been creative in applying the tools they have.  

Hoffman agreed with Klobuchar that his agency could use more funds while facing adversaries with unlimited resources. 

Klobuchar asked if Yun retrospective reviews of mergers would be helpful. He said yes. Asked which mergers should be looked at again, he said, yes: Facebook/Instagram/WatsApp. 

Moss argued that while business so consumer deals have gotten all the attention, the "big swaths" of serial acquisitions are not in social media, but data analytics, AI, cloud computing, and other B2B transactions that she said have been "flying under the radar" and need to be looked at.  

Hoffman said retrospectives are useful, but are not transaction-specific. He said the FTC is also looking at specific past transactions where they may not have gotten it right.  

Sen. Josh Hawley (R-Mo.), one of Big Tech's biggest critics, told Hoffman he planned to send a letter to the FTC asking it to release the rest of a 2012 report on Google, half of which was made public, the other half not.  

Sen. Richard Blumenthal (D-Conn.) and Hoffman agreed that some of the tech issues they were discussing sounded and looked like the kinds of anticompetititive practices in the Microsoft antitrust case. Blumenthal pointed out he was a key player in that Microsoft investigation. One of the Microsoft remedies was interoperability, and not just internet browers.  

He said since he saw the same anticompetitive practices in big tech, he asked Hoffman if the FTC should be seeking interoperable mandates. Hoffman said the short answer was "yes." Its remedies in monopoly or retrospective merger cases were very broad. 

Moss said interoperability promotes consumer switching and allows rivals to operate on a platform without fear of discrimination, but she said it could be hard to implement and structural remedies, like break-ups, are the most effective remedies, and the easiest to enforce.  

She said she was heartened by the FTC tech task force, but has yet to see any cases coming out of that investigation.  

The Senate has passed the Measuring the Economic Impact of Broadband Act, according to its co-sponsors, by Sens. Amy Klobuchar (D-Minn.) and Shelley Moore Capito (R-W.Va.), who co-chair the Senate Broadband Caucus.

It was reported favorably out of the Commerce Committee May 15.

The bill is the latest effort in a political season where broadband access is an election issue--Klobuchar is running for President.

The bill was only introduced four weeks ago, but getting better broadband data is a bipartisan issue on the HIll.

Currently the FCC is collecting input on how to better gauge where broadband is or isn't by collecting more accurate and reliable data. The bill's goal is to gauge the effect of the digital economy and broadband deployment on the economy by collecting accurate data.

It would require the Bureau of Economic Analysis, with input from the Department of Commerce, whose NTIA arm is also charged with getting a better handle on where broadband is or isn't, to conduct the study of "broadband deployment and adoption of digital-enabling infrastructure, e-commerce and platform-enabled peer-to-peer commerce, and the production and consumption of digital media."

“Every family in America should have access to broadband internet connection, no matter their zip code” Klobuchar said. “The purpose of this legislation is to use accurate and reliable data to prove how critical broadband deployment is to our economy. I look forward to this bill being signed into law soon and getting one step closer to bridging the digital divide.”

Original co-sponsors include Sens. Angus King (I-Me.) and John Boozman (R-Ark.), the the other co-chairs of the Senate Broadband Caucus, as well as Sens. Dan Sullivan (R-Alaska) and Catherine Cortez Masto (D-Nev.).

A bipartisan Senate duo has pressed the Federal Trade Commission to go public with any investigation it is conducting of Google or other edge providers given "concerns regarding potential privacy, data security, and antitrust violations involving online platforms."

That came in a letter to the FTC from Sens. Marsha Blackburn (R-Tenn.) and Amy Klobuchar (D-Minn.), the latter a presidential candidate joining Sen. Elizabeth Warren (D-Mass.) in talking tough about the edge.

The senators recognize that the FTC does not usually comment on investigations, but suggested it was a "uniquely important" national issue given discussions about the conduct of Google Facebook and other edge providers.

Related: Sen. Blumenthal Says FTC Should Investigate Google

"The intensive collection and monetization of consumers’ personal data by digital platforms, as well as reported breaches of consumer data held by these companies, has raised significant questions regarding privacy and data security," they wrote. "In particular, some have expressed concern that Facebook’s recently announced plans to integrate its three messaging platforms—WhatsApp, Instagram, and Messenger—may lead to Facebook sharing user data between its platforms. As Congress considers legislation to enact stronger safeguards for consumers’ online privacy, we urge the FTC to use its existing authority to protect the privacy and security of consumers’ online data."

The Campaign for a Commercial-Free Childhood (CCFC) and the Center for Digital Democracy (CDD) applauded the letter. "We have led a coalition of consumer and privacy advocates in filing a string of complaints which show that Google is endangering the privacy and well-being of children," they said. "To date, the FTC has not acted or even commented publicly on any of these complaints."

More than a dozen Democratic senators have sponsored a bill, the Data Care Act, that would force edge providers and others to "stop the misuse of users' data."

The senators want edge providers to join doctors, lawyers, and financial institutions, which are all expected, and required, to protect personal info. “People have a basic expectation that the personal information they provide to websites and apps is well-protected and won’t be used against them," said Sen. Brian Schatz, the ranking member of the Senate Communications Subcommittee.

Survey: Edge Needs to Better Protect Privacy

The bill makes no secret of the senator's point that websites, apps, and "other online providers" have a "duty" take "responsible steps to safeguard personal information."

The legislation would establish the following duties, enforceable by the Federal Trade Commission with new authority it would get in the bill.

Duty of Care – Must reasonably secure individual identifying data and promptly inform users of data breaches that involve sensitive information;

• "Duty of Loyalty – May not use individual identifying data in ways that harm users;

• "Duty of Confidentiality – Must ensure that the duties of care and loyalty extend to third parties when disclosing, selling, or sharing individual identifying data;

• "Federal and State Enforcement – A violation of the duties will be treated as a violation of an FTC rule with fine authority. States may also bring civil enforcement actions, but the FTC can intervene.

• "Rulemaking Authority – FTC is granted rulemaking authority to implement the Act."

The FCC currently has very limited fining authority. It is generally limited to recovering money consumers have lost rather than imposing civil penalties and enforces through suits and settlements rather than rulemakings.

FTC Chair: We Need Rulemaking Authority

In addition to Schatz, signing on to the bill were Sens. Maggie Hassan (D-N.H.), Michael Bennet (D-Colo.), Tammy Duckworth (D-Ill.), Amy Klobuchar (D-Minn.), Patty Murray (D-Wash.), Cory Booker (D-N.J.), Catherine Cortez Masto (D-Nev.), Martin Heinrich (D-N.M.), Ed Markey (D-Mass.), Sherrod Brown (D-Ohio), Tammy Baldwin (D-Wis.), Doug Jones (D-Ala.), Joe Manchin (D-W.Va.), and Dick Durbin (D-Ill.).

Public Knowledge welcomed the bill as a conversation starter, but had some issues.

“We’re excited to see this innovative addition to the federal privacy debate and hope that Mr. Schatz’s legislation spurs a much needed conversation about the appropriate responsibilities for custodians of our personal information," said policy counsel Allie Bohm. “However, the bill leaves room for improvement. For example, the bill would only stop companies from using personal data for their own benefit at consumers’ expense when it will result in reasonably foreseeable, material physical or financial harm. This list of harms is woefully incomplete.“Similarly, the bill only requires companies to notify end users of a data breach when ‘sensitive’ data are breached -- this list is too limited to be effective. In fact, under the bill, Facebook would not have had to notify end users about Cambridge Analytica. Furthermore, the bill does not address how to handle conflicts between companies’ duties to their end users and their duties to their shareholders."

Sens. Mark Warner (D-Va.) and Amy Klobuchar (D-Minn.) have called on the CEO's of Twitter and Alphabet (Google) to follow Facebook's lead and voluntarily institute political ad disclosures the legislators are attempting to legislate.

That came in a letter Monday (April 9).

Facebook announced those changes, along with others, in advance of CEO Mark Zuckerberg's testimony before two powerful congressional committees this week. Twitter has also made a political ad disclosure pledge, which the legislators acknowledged.

Related: Zuckerberg Says Facebook Did Not Do Enough to Stop Fake News

Warner and Klobuchar are the co-sponsors of a bill, the Honest Ads Act, which would legislate such enhanced disclosures, but they want edge providers to get ahead of that curve. Zuckerberg also announced his support for the Honest Ads Act, which would mandate similar disclosures on his edge competition.

That bill would essentially apply the same kind of political ad disclosures that currently apply to print, broadcasters and cable operators--importantly who is paying for the ads--to the edge. It would also require there to be a public record of the ads published from an advertiser if it totals more than $500 in a year. Lastly, it requires best efforts to prevent foreign meddling in elections.

Separately, the Federal Election Commission is also contemplating expanding those disclosure requirements to online political ads.

Sens. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee, and Amy Klobuchar (D-Minn.) have reintroduced a bill to allow cameras in federal courts, including the Supreme Court.

The Sunshine in the Courtroom Act gives the presiding judge in a federal court the discretion to allow cameras, protecting the identities of witnesses and jurors when ended. It does not allow those cameras to capture private conversations between clients and counsel, opposing counsels, and with the judge.

It would also need to be renewed after three years.

It has been a decades-long effort on the Hill to open the courts to cameras, always with the caveat that it be at the discretion of judges on a, literally, case-by-case basis.

C-SPAN has demonstrated the value of television in the political process and the ability to do it unobtrusively and Grassley cited the cable-backed public service networks in trying once more to get the rest of Congress to join in the effort.

Allowing cameras in the courts creates a window into our judicial process for those Americans who may never climb the courtroom steps," said Grassley Wednesday (march 15). "In much the same way that C-SPAN fostered a greater understanding of the legislative process and improved transparency in Congress, allowing cameras in federal courtrooms would contribute to a better understanding of, and appreciation for, the American judicial system,” Grassley said.

Grassley pointed out that all 50 states now have some form of audio and video coverage. Federal courts have some form as well, but usually only on special request or with a time delay rather than live coverage.

Grassley is also lead cosponsor of another bill requiring TV camera access to Supreme Court oral arguments.

The Sunshine in the Courtroom Act is being reintroduced in concert with Sunshine Week, which celebrates access to government information.

The Republican Chairman of the Senate Antitrust Committee, Mike Lee (Utah), and Democratic ranking member, Amy Klobuchar (Minn.), have potential concerns about the deal and called on new Attorney General Jeff Sessions to insure it gets a thorough review.

In a letter to Sessions Friday, they said that the proposed deal "raises complex questions that will require a fact-intensive investigation that has yet to be completed, as well as a deep understanding of the economics of the digital content creation and distribution markets,” the senators wrote. “The stakes for consumers are high.”

"[T]he Department has previously recognized that vertical mergers involving video content providers and video content distributors can raise significant competitive issues," they wrote. "The Department has rigorously analyzed those issues using well-accepted legal and economic principles and should follow that approach in its review of the AT&T-Time Warner transaction."

Among the issues they want Justice to focus on in its antitrust review are 1) "whether the transaction would provide AT&T the incentive and ability to suppress rival content companies’ distribution"; 2) whether "the proposed transaction might create the incentive and ability for AT&T to undermine rival MVPDs and Online Video Distributors"; and 3) whether there are "practical obstacles to the enforcement of any conditions it may impose."

The FCC will not be reviewing the deal for public interest issues, though the two companies sent a group of senators--not including Klobuchar or Lee--a public interest statement Friday (Feb. 17)making the argument for the deal's pro-consumer effects.

The full text of the letter is below, supplied by Klobuchar's office:

"Dear Attorney General Sessions:

"As Chairman and Ranking Member of the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights, we write concerning AT&T’s proposed acquisition of Time Warner, Inc. The proposed transaction raises complex questions that will require a fact-intensive investigation that has yet to be completed, as well as a deep understanding of the economics of the digital content creation and distribution markets. Although the purpose of this letter is not to focus on the ultimate antitrust decision, we want to highlight three considerations we believe the Department should take into account in evaluating the proposed transaction. At the same time, the Department has previously recognized that vertical mergers involving video content providers and video content distributors can raise significant competitive issues. The Department has rigorously analyzed those issues using well-accepted legal and economic principles and should follow that approach in its review of the AT&T-Time Warner transaction.

"First, the Department should consider whether the transaction would provide AT&T the incentive and ability to suppress rival content companies’ distribution. AT&T has a substantial position in every platform used to distribute video content. It is the second-largest wireless provider, with 133 million subscribers; the largest Multichannel Video Programming Distributor (MVPD), with 25 million subscribers split between DirecTV and U-Verse; and a major internet service provider, with 16 million broadband customers. Time Warner is one of the largest programming and content creation companies in the United States. Among other television networks, it owns CNN, HBO, TBS, and TNT, and it makes its own content through Warner Brothers Pictures and Warner Brothers Television. Time Warner sells its content to movie theaters, streaming services, and MVPDs—including AT&T.

"As a result, AT&T would be both a distributor of and competitor to many content providers (HBO, for example, competes with premium channels such as STARZ and Showtime; CNN competes with MSNBC; and small independent content providers compete with Time Warner’s content). AT&T could conclude that it’s beneficial to limit competing content providers’ access to AT&T’s distribution services. As one witness explained, if AT&T goes down this route, its decisions might disproportionately affect independent programmers that meet unique market needs, thus affecting the type of content available to consumers. In response, AT&T has pledged not to restrict access to AT&T’s distribution networks. For example, Randall Stephenson, AT&T’s CEO, testified before our Subcommittee that that the market demands that each MVPD “better have a wide array of content” and that “you will lose customers if you do not” because “[t]here are too many alternatives.” These statements, made under oath, should factor into the mix of information considered by the Department.

"Second, the proposed transaction might create the incentive and ability for AT&T to undermine rival MVPDs and Online Video Distributors (OVDs). The Antitrust Division has focused on similar concerns in evaluating previous transactions. In reviewing Comcast’s acquisition of NBC Universal (NBCU), for example, the Antitrust Division explained that Comcast “will have a strong incentive to disadvantage its competitors by denying them access to valuable programming or raising their licensing fees above what a stand-alone NBCU would have found it profitable to charge.” AT&T may likewise find it beneficial to increase the price of popular Time Warner content to rival MVPDs in an effort to benefit AT&T, and this behavior may raise antitrust concerns. The popularity of Time Warner’s must-have content may leave competing cable providers—particularly smaller or regional cable companies—with no alternative but to pay higher prices and pass these higher prices on to consumers. AT&T could benefit directly from higher carriage prices or indirectly by undercutting rival MVPDs’ prices. Because AT&T’s television services, such as DirecTV Now, are available across the country, AT&T competes directly with many MVPDs, and that concern could be more prominent than in similar mergers. In response, AT&T has pledged not to restrict distribution of Time Warner content, including in testimony before our Subcommittee.

"In addition, AT&T may attempt to undermine rival OVDs. As a result of the proposed transaction, AT&T has launched its own online video distribution platform, and AT&T may use its mobile and broadband networks to undermine rival OVDs’ ability to compete. During the hearing, there was significant discussion about zero-rating and whether it could be a tool to undermine competing OVDs. AT&T has promised to offer zero-rating to all content providers on nondiscriminatory terms, consistent with the FCC’s Open Internet Order. At the hearing, however, Mr. Stephenson acknowledged the challenge in devising an approach to ensure that AT&T lives up to that promise, explaining that “I think we ought to allow the Department of Justice to formulate an approach for doing that.” More generally, AT&T has explained that the merger would be a key factor in disrupting the existing pay-television industry. Mr. Stephenson testified that, “[a]s a result of the transaction, we [AT&T] will be a significant content company for the first time. We will have a strong incentive to optimize the additional value of our content by having a robust mobile network that can deliver the advanced video services that the transaction makes possible.” Stephenson predicted that, “when AT&T rolls out these offerings, others will follow suit,” leading to increased competition in video distribution.

"Third, while we do not take a position on the appropriateness of conditions in general or in this case, we urge the Department to consider practical obstacles to the enforcement of any conditions it may impose. As the Department is aware, adjudicating disputes over the interpretation or application of merger conditions can be a time consuming and resource-intensive process. In some cases, the time and resources needed to enforce a condition may render it ineffective.

"The stakes for consumers are high. If the deal has anticompetitive effects, it will increase consumer prices and may inhibit future innovation. But the companies maintain that the deal may also be an important catalyst in breaking the existing pay-television model that so many consumers find frustrating. In response to Committee questions, Mr. Stephenson said the merger “will bring the consumers better-priced options.” The Department must determine whether the evidence supports or disproves that claim. We trust that the Department will engage in a careful analysis guided by the facts in evidence and agreed-upon economic principles. Thank you for your attention to these matters, and we look forward to following up with you regarding this transaction."

The Committee to Protect journalists is calling on Attorney General nominee Sen. Jeff Sessions (R-Ala.) to commit to support guidelines that make it harder for the Justice Department to subpoena journalists' records.

At the hearing, Sen. Amy Klobuchar (D-Minn.), whose father was a journalist, said she was particularly sensitive to the journalist's role as a watchdog and asked him to commit to guidelines Attorney General Eric Holder issued in 2015, which include releasing an annual report on any subpoenas and promising not to put journalists in jail for doing their jobs.

Sessions did not commit, saying he needed to study the guidelines.

RELATED: Trump Calls CNN 'Fake News'

Klobuchar said that while there were "a few examples of where the press and the Department of Justice haven't agreed," she believes DOJ "does have sensitivity to this issue" and that "for the most part there is a broadly recognized and proper deference to the news media."

But she added a caveat, saying, "You could have a situation in which the media is not really the unbiased media we see today and they could be a mechanism through which unlawful intelligence is obtained."

RELATED: Committe to Protect Journalists Brands Trump Threat to Press Freedom

Klobuchar said she would follow up with Sessions in written questions, but the CPJ was not waiting around.

"We urge Senator Jeff Sessions, if confirmed as attorney general, to follow the revised guidelines set out by Attorney General Eric Holder," said Carlos Lauría, CPJ's senior program coordinator for the Americas, in a statement. "The U.S. government should be expanding protections for journalists to gather the news and maintain confidential sources. They must not roll these protections back."

As if there were any doubt, Google and its policy allies will continue to push their vision for Smart Cities with a focus on education and health applications during the coming years. Rural plus small-town deployment will remain a centerpiece of their political efforts.

At a Next Century Cities (NCC) program in Washington on Wednesday morning (Nov. 30), bipartisan speakers extolled broadband's value and some, such as Sen. Amy Klobuchar (D-Minn.), a member of the Senate Commerce and Judiciary committees, indicated plans to keep their agenda alive no matter what policy barriers lie ahead.

"Transforming Communities: Broadband Goals for 2017 and Beyond," the title of the event, was sponsored by Google Fiber, the Ford Foundation, Internet2 and Harrison Edwards (a Westchester, N.Y., public relations firm that represents many non-profit/educational institutions). The program (watch a video) was held at Google's Washington office.

In prepared remarks Klobuchar said, “Everyone, from the farmers in rural Minnesota to those in our towns and cities, must be able to log on and participate in this new digital economy.”

Sen. Angus King (I-Maine), a member of the Rules and Budget committees, described high-speed broadband's capability to enable people "whether they live in rural Maine or New York City, to realize unprecedented economic, educational and cultural opportunities."

"That’s why today’s event, which brought together a bipartisan coalition of voices to champion how broadband can transform our communities, is so vitally important," King said in prepared remarks.

Sen. John Boozman (R-Ark.), who sits on the Senate Appropriations and Rules committees, observed: "Broadband is a vital component to our nation’s 21st century infrastructure and our federal policies must reflect this. Right now, a digital divide exists between rural and metropolitan areas which we must overcome.”

The Schools, Health & Libraries Broadband (SHLB) Coalition and US Ignite, which supports next-generation Internet applications, co-hosted the event. Other speakers included several mayors, school and library administrators plus familiar broadband cheerleaders such as Harvard Law professor Susan Crawford; Gigi Sohn, the outgoing counselor to FCC chairman Tom Wheeler; and Brookings Institute senior fellow Blair Levin.

The NCC characterized its event as a way to examine "key policy goals and needs for the next administration, and the program also included demonstrations of "innovative civic applications enabled through gigabit technology."

Counting 150 cities among its membership, the NCC characterizes itself with a Google-friendly description as an organization that "recognize[s] the importance of leveraging gigabit-level Internet to attract new businesses and create jobs, improve health care and education, and connect residents to new opportunities."

NCC executive director Deb Socia summarized the event's objective as a way to examine "how all levels of government can work together to continue broadband efforts in communities nationwide and build on these transformative achievements.”

The underlying message of this NCC initiative, which notably did not include cable organizations, is that the broadband battle will continue, with powerful forces continuing to seek dominant roles. Wednesday's event was one in a long series of think-tank and astroturf lobbying programs in Washington during the coming weeks as soothsayers imagine what the next Congress and Administration will wreak.