The Senate Judiciary Committee has favorably reported the Journalism Competition and Preservation Act (S. 673) to the Senate for a vote, potentially paving the way for broadcasters, newspapers and other journalism creators to share in the revenue their original news content generates for Big Tech platforms.

That came at a business session Thursday (Sept. 22).

The bill, which creates a limited antitrust exemption to allow publishers to collectively negotiate with the largest platforms such as Google or Meta (Facebook), has been modified to clarify that it is about fair compensation for news creators, not what content should or should not be on those platforms.

The measure also provides for outside arbitration if deals can’t be struck.

There is plenty of bipartisan support for the bill, which was able to bring together Sens. Amy Klobuchar (D-Minn.) and Ted Cruz (R-Tex.), who forced the issue on clarifying the bill was not about content, but compensation.

Klobuchar, who worked with Cruz and the bill's lead Republican, Sen. John Kennedy (R-La.), said the bill was never intended to be about negotiating for payment, not for content type. Cruz, though, had been concerned that the bill would allow Google or Facebook to include which type of content they would have on their platforms. Cruz and other Republicans have long argued that Big Tech uses its power to favor liberal content while censoring conservative voices.

She said the bill as approved Thursday (Sept. 22) now makes it clear that “discussions about content are outside of the scope of the bill, and of the bill's narrow antitrust safe harbor.”

“This bill bars Big Tech firms from throttling, filtering, suppressing or curating online content while providing local news outlets with a fair playing field to negotiate against these censorship giants,” Kennedy said.

But not all the senators were praising the final result.

Also: DOJ’s Jonathan Kanter Says Big Tech Needs Antitrust Mole Whacking

Sen. Alex Padilla, a Democrat from Silicon Valley's home state of California, had a number of issues. Top among them, or at least the first he raised before the vote, was that the money secured by broadcasters and other original content creators might not go to the workers, but instead to stock buybacks and executive salaries.

The bill was adjusted to toughen the reporting requirements, which he had asked for, but he said those were still only reporting obligations. Then there was the issue of content. He said the bill was still about content, since its prohibition on Big Tech platforms taking content into consideration in negotiations meant they could be subsidizing disinformation and hate speech on outlets with which they fundamentally disagree. He also argued that the bill would compel payments for “foundational” features of the internet, such as aggregating, crawling or indexing.
Sen. Mike Lee (R-Utah) also had plenty of discouraging words. He said the fundamental flaw in the bill was that it was trying to boost competition by sanctioning the creation of cartels, cartels that antitrust laws “go out of their way to prohibit.” In protesting the bill, computer companies repeatedly called it a cartel creator.

Also: Big Tech Says Media Antitrust Exemption Would Create News Cartels

Lee also said that if the goal was to get new content creators out of the big shadow of Big Tech, it instead tied them financially to the “monopoly rents” of those platforms.

Those concerns notwithstanding, the majority of committee members, Democrats and Republicans, backed the bill and it is headed to the Senate for a vote. ▪️

Big Tech is beating up on broadcast consolidation as it pushes back on a bill that would give broadcasters and other original news creators an antitrust exemption to negotiate with the tech giants that leverage that original content online.

The Computer and Communications Industry Association issued a pull-no-punches statement— the term “cartel” was used multiple times — following the Senate Judiciary Committee’s favorable referral of the Journalism Competition and Preservation Act (S. 673) to the Senate for a vote.

The CCIA said the bill would create a “news cartel” while failing to solve the issue of compensation for original news creation.

Also: Big Tech Says Bill Benefits Big Broadcasters

The bill gives “news content creators” — print, broadcast or digital — an antitrust safe harbor to negotiate collectively with digital platforms like Facebook and Google for carriage of their original content.

While the idea behind the bill is that Big Tech is so big that broadcasters need the scale of joint negotiations to get fair compensation, the CCIA suggested the concentration shoe was on the other foot. “The Computer & Communications Industry Association has defended competition in the marketplace for 50 years and fought media consolidation and mergers including Comcast-NBC and Sinclair-Tribune,” it said.

Also: NAB Praises Progress on Big Tech Bill

“The JCPA continues to be an unprecedented government overreach,” CCIA president Matt Schruers said. “It encourages the creation of a media cartel which will impose link taxes, and it threatens to hamstring digital services’ efforts to moderate dangerous content with ‘must-carry’ obligations.

“While objective journalism is critical to informing voters, inserting federal regulators into private sector business negotiations, mandating carriage of what the government thinks is ‘news,’ and promoting cartels is an irresponsible way to encourage an independent and robust news media,“ Schruers added. ■

The Senate Judiciary Committee has favorably reported the EARN It Act to the full Senate, but with the agreement to work on some issues as it moves toward a floor vote. 

The Eliminating Abusive and Rampant Neglect of Interactive Technologies [EARN IT] Act would remove Section 230 immunity from liability from edge providers who knowingly distribute or promote child sexual abuse materials on their websites. 

The vote came during a committee markup of the bill on Thursday (Feb. 10).

Computer companies have opposed the EARN It Act, while law enforcement and child protection advocates support it. Some human rights groups have expressed issues about encryption and privacy and the bill‘s impact on journalists and others.

The EARN It Act would not mandate an affirmative duty for companies such as Google, Amazon, Netflix or Facebook to police their sites or review material. It would only remove the immunity for not “reasonably inspecting” their material, which means if they are informed of such material and do nothing to keep it off their sites, they would lose civil liability immunity for that particular third-party content.

One issue was the bill's impact on encryption of private communications, but bill co-sponsor Sen. Richard Blumenthal (D-Conn.) said that the bill does not prohibit encryption, but only the misuse of encryption to further illegal activity.

Also: DAs Make Case for EARN It Act

Both Democrats and Republicans signaled that if any Big Tech company tried to use the lack of an affirmative duty as a loophole, those legislators might have to circle back and mandate that the sites review their material.

Sen. Lindsey Graham (R-S.C.), the bill's other principal co-sponsor, said that whether there should be an affirmative duty to police sites is another issue and that when informed of such content he hoped Big Tech would act responsibly. If not, he signaled such a duty would be “in his next bill.”

Blumenthal said that despite the arguments of Big Tech‘s armies of lawyers, the bill was not about encryption, which he called a “gigantic red herring,” or free speech, he said. “Rape is not free speech,” he said. There are companies that are vigorous partners in the effort to fight child sexual abuse, he added, because they know it can be done.

He said the bill was about expanding mandatory reporting, doubling the time that companies are required to preserve evidence of child exploitation, fostering the next generation of technology to fight abuse and holding tech companies accountable when they fail to supervise and prevent the spread of child sexual abuse material.

Among the issues to be worked out before a full Senate vote include whether not having the affirmative obligation in the bill is a loophole that needs fixing now, clarifying the encryption provision, the impact of the law on smaller websites and whether a state definition of knowledge of illegal material should be incorporated into the bill, as is currently the case.

Sen. Mike Lee (R-Utah) pointed out that could mean that in Illinois, for example, whose knowledge standard goes beyond “knew” to “should have known,” tech platforms could be held to that standard.

Blumenthal said he thought incorporating state standards was still better than “straitjacketing” them to a federal standard. ■

The Senate has weighed into what was described as an “overgrown standing army” of Big Tech monopolists, with Senate Antitrust Subcommittee chair Amy Klobuchar (D-Minn.) saying to the army of lobbyists that would try to take down a tough new antitrust law under consideration: “Bring it on.”

The bill, the American Innovation and Choice Online Act, is aimed at preventing big online platforms like Apple, Google, Amazon and others from self-favoring conduct that leverages their dominance in search and apps and online commerce to suppress competition. A House version of the bill was also introduced in June, but the Senate version has a number of changes that would have to be reconciled.

Those new parts of the bill include clarifying that some types of “privacy-enhancing conduct” would be permitted, making sure that powerful platforms not publicly traded do not escape the bill’s coverage, and that subscription services like Amazon Prime Video and other streamers were not impacted.

The bill also now requires guidelines to be issued to the business community within nine months and a one-year period for covered platforms to come into compliance.

Klobuchar, a lead sponsor of the bill, said that helped the measure strike the right balance, but the hearing featured much striking out at provisions of the law from both sides.

While the bill did eventually pass out of committee Thursday, there is no guarantee it can achieve the necessary votes in the full Senate. 

While attacking Big Tech is one of the few issues that unites Democrats and Republicans, the bill being marked up by the Senate Judiciary Committee was hardly a bipartisan beatdown of the Big Tech pinata. In fact, it appeared to divide not only Democrat from Republican, but Democrat from Democrat.

There was disagreement on the content of the bill, the consequences — or unintended consequences — of the bill, and the process that got it to markup on Thursday (January 20).

Sen. Mike Lee (R-Utah), ranking member of the antitrust panel, made it clear the bill was not, in its current form, the way to go. He said he could not support it, and he was not alone.

Democratic Sen. Patrick Leahy (D-Vt.) said he still had issues that needed to be resolved before he could vote for it on the Senate floor.

Sen. Dianne Feinstein (D-Calif.) had big problems with the bill's focus on regulating the behavior of the biggest big tech companies — Apple, Google, Facebook and Amazon — while allowing others to engage in the same conduct. She said it could be a “very dangerous” law that could tip the balance of power toward big foreign firms not covered by the bill.

Feinstein said the bill had major security problems because it required companies to take down protections, a complaint lodged by some Republicans. She said she would oppose the bill and said it should have gotten a full committee hearing.

Lee also said one of his issues was there had been no legislative hearing on the bill. He conceded that it had been “mentioned” on occasion in other Big Tech antitrust hearings, but that did not equate with a legislative hearing on the bill itself.

The hearing featured a testy exchange between Feinstein and Klobuchar, with Klobuchar saying one claim Feinstein made about administration concerns with the bill was “not true.”

Lee asked how much pro-competitive behavior could get caught in the bill and end up with the unintended consequence of removal of popular products and services that helped consumers.

The bill potentially fines violators 15% of a company's total revenue, which Lee said would just line government coffers. He said the penalties were not tied to actual harms, and could just push online platforms to stop working with third parties.

Lee also said he was concerned about giving federal agencies sweeping new power to redefine markets. He said that’s something that has never worked and he didn’t see why it would now.

He raised another hot-button issue. He said deep state bureaucrats should not be given control over Big Tech, and said the bill should address Big Tech censorship, rather than giving the keys over to the Federal Trade Commission to control those companies then use it against Republicans.

Klobuchar said she was shocked by some of the things Lee said and that the hearing — in December — where the bill was raised was hardly perfunctory and the Republicans' own witness supported the bill. Klobuchar said there have been four separate hearings related to the issues the bill addresses.

The American Edge Project has taken out ads on Washington media outlets opposing the bill and claiming it could hurt America's tech edge globally. Klobuchar conceded at the hearing that the bill's supporters did not have the money to take out TV ads showing their support, but were behind it nonetheless.

The bill did unite strange political bedfellows Klobuchar and conservative Josh Hawley (R-Mo.). Hawley said the bill goes “right at competitive conduct." Hawley is one of the biggest Big Tech critics. He disagreed with Lee that the bill could, ironically, strengthen Big Tech, though he agreed with the Big Tech/Big Government alliance and about censoring speech.

Klobuchar warned that there would be attempts to delay the bill with a raft of amendments. Lee took issue with that, saying his amendments were an effort to make the bill better, not kill it.

Sen. Thom Tillis (R-N.C.) said the bill was an overreach and needed more work, but said he would not call for a vote on the 40-plus amendments he had filed. His issues included who was covered, what it meant by making “preferencing” illegal and what the consequences of illegal “preferencing” would be. Another 40-some amendments were also withdrawn, but Klobuchar said she would stay there day and night to finish the markup.

Small Hopes for Compromise

While the bill made it out of committee, it was tough to see how there could be a meeting of the minds on exactly the way forward, particularly with the concerns addressed by many Democrats. Some of those Democrats said they could not vote for the bill in committee, others said they would vote for it, but could not vote for it in the full Senate without changes.

Sen. Ted Cruz (R-Tex.) backed an amendment to allow for individuals to sue Big Tech over violations of the new law, pointing out that support was a reversal from the norm, where Democrats push for private rights of action and Republicans oppose, including himself. But Cruz said Big Tech's conduct was so egregious he was ready to “unleash the trial lawyers.”

Some Democrats argued that the bill unfairly targeted conduct by larger players, but Cruz said that the bill was targeted to the large companies because “they were the monopolists.”

He ultimately withdrew all his amendments, saying he looked forward to working on the issue and would vote for the bill out of committee, but reserved judgment on a full-Senate vote.

Cruz used some of his time on bill discussion to agree with Lee that censorship of conservative speech by Big Tech is “pervasive, pernicious and brazen.” Sen. John Kennedy (R-La.) added that he saw Big Tech as a “killing field” for the truth. 

“This bill endangers U.S. digital leadership, and puts consumers’ security and privacy at risk," said Matt Schruers, president of the Computer and Communications Industry Association after the 15-6 vote to report the bill to the full Senate. "Rather than drafting general rules to protect consumers’ welfare, the bill regulates the business models of a handful of companies.  This bill is European-style industrial policy, not competition policy.”

Consumer Reports, which got a shout-out during the hearing over its support of the bill, was understandably pleased it made it out of committee.

“The bill will stop the largest online platforms from imposing their self-serving rules on markets and society," said Sumit Sharma, senior researcher for tech competition at Consumer Reports. "The bill will benefit consumers by making it easier to install, choose, and use alternative apps and online services. It will remove the roadblocks that the largest online platforms have put up to hinder innovation by competitors. We will see more innovation as a result of the bill, which will create more choices for consumers.”■

Sen. Patrick Leahy (D-Vt.), currently the Senate‘s longest-serving member and its president pro tempore and a longtime proponent of better piracy protections for over-the-top content, will not run for re-election, he announced Monday (Nov. 15), after six terms in the Senate.

Leahy has been a prominent figure in communications circles as chairman of the powerful Senate Judiciary Committee, which combines with the Commerce Committee to vet nominees, including to the Supreme Court, and takes the lead in antitrust issues related to proposed mergers.

Leahy said of his two decades as chairman and ranking member of the Judiciary Committee, his goal had always been to “defend our civil liberties, the First Amendment, our right to privacy and the free flow of information from the government to the people it represents.”

He has been prominent on issues particular to the media industry, including protecting and accessing content.

Leahy co-authored a bill making unauthorized streaming a felony to help crack down on criminal piracy in the age of increasingly over-the-top delivered content.

In 2020, after years of effort by the creative community and Leahy, the combination of the explosion of streaming content and over-the-top distribution channels and a COVID-19-sequestered populace for whom online video was entertainment lifeline created the proper conditions for passage of the bipartisan Protecting Lawful Streaming Act, which made stealing video streams a felony, as it already was for illegally copying and distributing copyrighted TV shows and movies.

Before the law passed, a pirated stream was treated as an illegal performance, which is a misdemeanor, rather than illegal reproduction and distribution, which is a felony. Making it a felony meant the greater deterrents of larger penalties or potential prison time.

Leahy has also been a backer of cameras, and later streaming, in the courts.

In the broadband space, like most Democrats, Leahy has backed network neutrality rules and once co-sponsored a bill that would have banned paid prioritization.

He also opposed the bulk collection by the government of communications records undertaken by the government in the wake of 9/11, instead saying such collection should be limited to specific investigations, something he championed in the USA Freedom Act, which he co-sponsored and which passed the Senate in 2015.

The Motion Picture Association hailed Leahy's protection of creative content.

“[MPA] thanks Senator Patrick Leahy for being a tireless champion of the creative community during his eight terms in the U.S. Senate,” MPA chairman and CEO Charles Rivkin said. "Throughout his career, he has been a lion for artists’ rights, from content creation to content protection. His commitment to the film, television and streaming industry goes beyond the halls of the Senate — he‘s been featured in five Batman movies, serving under four different Caped Crusaders. I hope he enjoys a well-deserved, long retirement with his family — his wife, Marcelle; his three children, Alicia, Kevin and Mark; and his five grandchildren. We look forward to seeing him back in Washington, Los Angeles or Gotham very soon.”

“It was my honor to serve with Patrick Leahy in the Senate and my good fortune to call him a friend. I even took the time recently to visit his boyhood home in Montpelier, Vermont," said National Association of Broadcasters President Gordon Smith. "More importantly, during my time in the Senate[he was a Republican senator from Oregon], I had the privilege of traveling the world with Pat and working with him on a range of legislation, all in the interest of the nation. While leading NAB, I have been grateful for the opportunity to continue working with him in support of America’s local broadcasters. I thank Senator Leahy for his decades of service to the American public and the people of Vermont, and I wish my friend the very best in his retirement.”

“As a former staffer to Senator Leahy, I witnessed firsthand his incredible dedication to ensuring a better future for the people of Vermont," said incoming NAB COO and incoming president, Curtis LeGeyt. "Working with him instilled in me a dedication to public service that I carry with me as an advocate for radio and television broadcasting. It was a privilege to learn from one of this generation’s great legislators and public servants, and to see the important accomplishments made possible by working across party lines. I congratulate Senator Leahy on his well-deserved retirement.”■

For the first time in a decade, bills that would provide greater public access to the courts via the media, including streaming, have cleared an important hurdle.

That came at a markup in the Senate Judiciary Committee Friday (June 24).

Also Read: Fix the Court Says Streaming Should Be One Video Reform

According to Fix the Court, which has been advocating for cameras in the court for years, the committee passed two access-related bills.

By a vote of 14 to nine, to approved the Cameras in the Courtroom Act, which would require the Supreme Court to allow video recording of oral arguments and the reading of opinions.

It also passed the Sunshine in the Courtroom Act, which would allow judges to authorize live or delayed video and audio of courtroom proceedings.

“Whatever the fate of these bills, today is an apt reminder that Congress has broad authority to set institutional policies in our federal courts, even in the Supreme Court, from where they meet, what kind of cases they hear and, yes, whether they’re permitted to close their hearings to 99.9% of the public despite what modern technology affords,” said FTC’s Gabe Roth said. “The Committee’s continued interest in working to open up the historically opaque third branch, under both Democratic and Republican leadership, shows that transparency is a worthy goal that has no partisan bounds.”

Also Read: Groups Ask Supremes to Keep Live Coming

"Whatever the fate" is a key phrase. Attempts have been made for decades to get courts to open up to audio and video. Progress has been made on that front in various courts, including the Supreme Court, which opened its arguments up to live audio during the pandemic given that in- person attendance was barred. That was an upgrade from the end-of-week audio releases the High Court had adopted. But video is still off limits.

One big issue is separation of powers and to what degree the Congress can tell the federal courts what to do. Another is the judges who feel video potentially distorts decision making given that it can be cherrypicked and edited.

Sen. Ted Cruz (R-Texas) was one of those opposed to cameras in the Supreme Court. He said he was concerned about politicizing the court, including lawyers and justices playing to the camera and arguments sliced and diced in the editing room.

Fix the Court points said that some two-thirds of Americans have supported live video and/or audio in the Supreme Court since it started  since FTC started polling in 2014.

As to the current state of media access, according to Fix the Court: "The Supreme Court and 91 of 94 district courts do not allow cameras. Fifteen district courts are currently participating in a two-year live audio pilot program that began this past February. Although, per Judicial Conference policy, circuit courts may offer live audio and/or video access for arguments, only two, the D.C. (live audio) and Ninth (live video) Circuits, typically offered such access for their arguments, until the pandemic hit, whereupon all 14 appeals courts live streamed their hearings. Currently, only four of the 14, the Second and Federal Circuits, plus the D.C. and Ninth Circuits, have committed to live streaming into the fall."

The Senate Judiciary Committee launched its two-day nomination hearing Monday (Feb. 22) for Merrick Garland. President Joe Biden's nominee for attorney general. Like his predecessor, Bill Barr, he has some experience with communications issues. But unlike his previous nomination--by President Obama to the Supreme Court in 2016--he is expected to be confirmed to his new post.

Among the communications issues Garland will be confronting as attorney general are electronic surveillance and encryption, music licensing consent decrees, and Big Tech antitrust and Sec. 230 immunity issues.

If he is confirmed, that will mean that Garland, former Chief Judge on the U.S. Court of Appeals for the D.C. Circuit, which has principal jurisdiction over FCC decisions, will be replacing a former telecom exec, Bill Barr, who argued against FCC net neutrality regulations while general counsel of Verizon.

Also Read: Attorney Bill Barr Resigns

Garland does not have a long communications decision track record on the D.C. circuit, though he was chief judge of the court when a three-judge panel heard the 2013 Verizon v. FCC case, that company's challenge to compromise, Title I-based net neutrality rules. Verizon's victory arguably proved pyrrhic since it led to tougher regs, at least until they were eliminated though likely to return in some form under the new administration.

He also had to weigh in when petitioners sought en banc (full court) review of panel decisions, like those on net neutrality rules.

The Reporters Committee does not rate Attorney General nominees, but it appears to like what it saw in Garland's judicial background when it came to First Amendment protections.

Also Read: Chief Judge Garland Allows Streaming of Oral Argument

It said that Garland has taken strong stands on speech and journalist protections, though both came in dissents, one in support of reporters' privilege and another in support of publishing lawfully obtained information.

Nominee Garland was early on pressed by members of Congress to drop DOJ's suit challenging a California net neutrality law, but the Biden Justice Department has already done that even without a new attorney general.

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.”

Senate Republicans appear to be continuing to put the pressure on Big Tech during the lame duck session, with a couple of the biggest names in tech testifying this week.

The Senate Judiciary Committee has scheduled a hearing for Tuesday (Nov. 17) on "Breaking the News: Censorship, Suppression, and the 2020 Election."

Related: Minority Report Finds Big Tech Threatens Local News

Scheduled to testify, according to the committee, are Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg.

Those are the same two executives who testified before the Senate Commerce Committee in advance of the election, talking about, among other things, how they would flag misinformation. Twitter has been particularly active, flagging multiple tweets by President Trump related to the election and his allegations, to date unsubstantiated, of widespread fraud.

“Because of protections provided by federal law, digital services can take action against a variety of objectionable online behaviors, including everything from harassment, to spam and disinformation to promoting self-harm," said Computer & Communications Industry Association president Matt Schruers of the upcoming hearing. "These protections are critical to services that allow people to connect with family and engage in economic activity online, particularly during a pandemic. If consumers disagree with moderation decisions that a particular service makes, there are a wealth of competitors to choose from.”

The Senate Judiciary Antitrust Committee weighed into the online advertising market Tuesday (Sept. 15) with an emphasis on the 600 pound gorilla in that space and whether it has exerted its power over anticompetitively, as critics have alleged. The tenor of the hearing was telegraphed in its clever title, which posed its indictment in the form of a question: "Stacking the tech: Has Google harmed competition in online advertising?"

The answer, Committee Chairman Mike Lee (R-Utah) said, "matters."

Don Harrison, president of global partnerships and corporate development, for Google was on the hot seat, but showed up to take the punishment as one of the key witnesses.

Related: Big Tech Faces Hearing Buzz Saw

Lee worked with ranking member Amy Klobuchar (D-Minn.) on setting up the bipartisan hearing.

Lee said the issue is whether Google is a monopolist whose conduct in the online ad market has harmed competition and consumers. But he also said more broadly the hearing was about the larger public debate about antitrust policy. He said markets, like governments, don't keep themselves free and that liberty is only secure when power is diffused. He warned against "fetishizing" freedom to the exclusion of that security.

But on the other side of the spectrum, he argued as strongly against transforming antitrust laws into a panacea cure for labor, income and racial disparities, based on the myopic view that big is bad. He said there would be scores of unintended consequences of repurposing antitrust into a social reform tool.

Lee said he was for vigorous enforcement of antitrust laws, which serve to diffuse power.

He said that in contrast to the Democrat-controlled House's Big Tech hearings, he was not out to turn the hearing into a spectacle to attack or condescend to or talk over witnesses. He said the hearing was about the state of competition in digital markets, specifically the complicated online ad market, which has facilitated an explosion of content.

Lee said the issue was that the online ad growth and expansion was primarily on one platform, Google. He said what has also expanded are complaints that Google has conflicts of interest and has rigged online ad tech to favor its own interests and protect market share. Less said whether that was true or not matters. He said if the marketplace has been manipulated, everyone loses.

Klobuchar said they were not holding the hearing because Google was successful or because it was big. She said it was because even big and successful and innovative companies are subject to antitrust laws. "The law can't be blinded by Google's innovation and past successes if the company, in its zeal for financial success, crosses the line into anticompetitive behavior."

Klobuchar pointed out that while the pandemic has led to smaller companies closing their doors, the largest tech firms continue to thrive. "We have to start looking at whether the laws match that situation, even if the original intent of Big Tech when they were still small tech was to be innovative. At one point have you crossed the line into squelching competition," she said.

She pointed out that Google controls the services on both sides of the ad tech "stack," the publishing and advertising side, taking by some estimates up to 70% of the ad dollar for its services, "depriving publishers [news and other content producers] of that revenue."

When he had the floor, Harrison billed the company as building tools to help businesses of all sizes grow, including small firms. He said ad tech--helping with the ad buy and sell side on other websites and mobile apps--was only a small fraction of its revenue and that the majority of that was shared with publishers.

Harrison argued that the ad tech space was crowded and competitive and it competed with a host of other large companies, including Oracle, Comcast, Facebook, AT&T and Verizon.

The Senate Judiciary Committee has scheduled an executive session for Thursday (June 4) to vote on a key judicial nomination, President Donald Trump's nominee, conservative Kentucky District Court Judge Justin Walker, to fill Supreme Court Justice Brett Kavanaugh's vacant seat on the U.S. Court of Appeals for the D.C. Circuit.  

The D.C. Circuit is the court of primary jurisdiction over FCC decisions. 

The committee vetted Walker in a contentious hearing back in early May.

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, two figures toward whom there is considerable animus on the Democratic sides. He is unlikely to receive many, if any, Democratic votes.

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. 

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).  

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-Texas), 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.

Mark your digital calendars. Next week will be an online-focused one for the Senate Judiciary Committee, which has scheduled three hearings in two days on a range of digital issues.

The Antitrust Subcommittee has set a March 10 hearing on "Competition in Digital Technology Markets: Examining Self-Preferencing by Digital Platforms." Witnesses are Gene Kimmelman, Public Knowledge; Sally Hubbard, Open Markets Institute; Professor Thomas Hazlett, Clemson University; Morgan Reed, ACT The App Association; and Jeremy Stoppelman, Yelp.

That same afternoon, the Intellectual Property Subcommittee has scheduled a hearing on "Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy? The witnesses will be divided into two panels. The first is an "academic exercise" featuring professors Justin Hughes, Loyola Marymount Law School; Pamela Samuelson, University of California Berkeley School of Law; Michael D. Smith, Carnegie Mellon; and Daphne Keller, Stanford. Panel two comprises Stan McCoy, Motion Picture Association, Brussels; former European Parliament member Julia Reda; Jonathan Yunger, Millennium Films; and Matt Schruers, CCIA.

On March 11, the full committee will convent to consider legislation in a hearing entitled "The EARN IT Act: Holding the Tech Industry Accountable in the Fight Against Online Child Sexual Exploitation. 

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.), fresh from a deep dive into Chinese telecoms in 5G broadband nets, wants to look into the intersection of data privacy, competition and advertising. 

Capitol Hill is laser focused on edge providers as it contemplates regulating privacy and maybe more, not to mention the calls to break up social media giants whose ad policies, particularly political and targeted ads accused of algorithmic discrimination, has drawn scrutiny from Capitol Hill.  

The hearing, “Understanding the Digital Advertising Ecosystem and the Impact of Data Privacy and Competition Policy," is scheduled for May 21 at 10 a.m. 

It will be a busy day for online advertising in Senate committees. The Judiciary hearing is not to be confused with the Senate Communications Subcommittee hearing on the impact of algorithmic decision-making and machine learning on internet platforms, which was also announced Tuesday (May 14) and is being held at 2:30 in the afternoon, so algorithm groupies can attend both. 

No word on witnesses for the Judiciary hearing.  

Senate Judiciary Committee chairman Charles Grassley (R-Iowa.) pulled an Electronic Communications Privacy Act update bill from the committee's markup agenda Thursday (June 9) after "poison pill" amendments threatened to expand the bill into areas that neither of its co-sponsors wanted it to go.

The baseline bill, which passed the House 419 to zero, would provide protections for cloud storage by requiring a probable cause warrant for accessing information in the cloud, and extending the protections for e-mails stored over 180 days (currently no warrant is required to access those).

It was scheduled to be marked up -- amended (or not) and voted out of committee --Thursday, but its co-sponsors. Sen. Mike Lee (R-Utah) and Sen. Patrick Leahy (D-Vt.), ranking member of the committee, requested it be pulled rather than allow it to be amended, which they argued would decrease privacy protections.

It was bumped from an earlier markup in hopes that a clean bill could emerge, but that did not happen. 

Leahy pointed out that their bill was both a bipartisan and bicameral compromise. He said if the poison pill amendments were added, he doubted the bill would pass the Senate and certainly would not pass the House, which would have to re-vote any changes to the bill it already passed unanimously.

Leahy helped write the original ECPA law, and said no one anticipated the way communications would be transmitted and stored. He said the bill would tank if controversial amendments were injected and he would hate to see that.

He said he would continue to work with his colleagues and said he hoped the bill could still be passed.

"I hope discussions continue to try to move forward with it," Grassley said. "It seems to me there are large areas of consensus, and it should be possible to reach a compromise that a large majority of the committee can support.

Sen. John Cornyn (R-Tex.), author of one of the amendments identified as a poison pill, said he supports warrants for content, but defended his amendment -- on national security letters allowing the FBI to access content -- saying it was highly targeted and hardly a poison pill, given that it "enjoyed the support of the majority of the committee."

The Cornyn amendment was opposed by Google, Yahoo! and others, who said the amendment would unduly expand FBI surveillance powers.

“It’s disappointing that the important reforms contained in ECPA have been derailed by a handful of senators who are trying to use this vital legislation to undermine Americans’ privacy by expanding the FBI’s ability to access communications without a warrant," said Adam Brandon, CEO of FreedomWorks, a small government, free market group.

The Senate Judiciary Committee has passed a "Sense of the Senate" resolution that there will be no religious test for immigrants to this country. The bipartisan vote was 16-4, including Republican committee chairman Charles Grassley (R-Iowa).

That came as an amendment, offered up by Sen. Patrick Leahy (D-Vt.), appended to S. 1318, the Nuclear Terrorism Conventions Implementation and Safety of Maritime Navigation Act of 2015, which was being marked up in the committee Thursday. "Lets formally reject this call for closing borders to Muslims," said Leahy.

The resolution was prompted by GOP presidential candidate Donald Trump, who stirred up a hornet's nest of criticism by saying their should be a moratorium on Muslim immigrants in the wake of terrorist attacks and questions about the efficacy of the Visa screening process.

In supporting the bill, Sen Chris Coons (D-Del.) talked about Trump wanting to close down houses of worship and bar immigrants from a single religion. He also pointed out that Trump had cited Franklin Roosevelt as justification.

The markup was overtaken by the issue of Trump's comments, with Democratic Senators repeatedly saying excluding people on the basis of religion was intolerable and now what the country stood for.

Sen. Dick Durbin (D-Ill.) called Trump's comments "disgusting, outrageous and un-American.

Only Sen. Jeff Sessions (R-Ala.) fought hard against the Leahy amendment, saying it was overbroad.