Legislative Update for Technology, Internet & Privacy Monthly Call (Feb. 14, 2018)

1. CLA IP SECTION
TECHNOLOGY INTERNET &
PRIVACY INTEREST GROUP CALL
LEGISLATIVE UPDATE
FEBRUARY 14, 2018
#CLATipCall

2. NET
NEUTRALITY

3. CONGRESSIONAL REVIEW ACT
• CRA resolution be approved by Congress within
60 legislative days of regulation.
• Must be signed by the President
• Democrats have 50 votes in favor in the Senate.
Susan Collins (R-ME) (right) has indicated she will
support resolution.
• Internet Ass’n Supports resolution.
• House Passage Unlikely
• Senate Commerce Committee Chairman John
Thune (R-SD) has called for bi-partisan
compromise

4. F
O
S
T
A
EST
B
A
C
K
P
A
G
E
DA230

5. JANUARY 2017:
SENATE INVESTIGATIONS
SUBCOMMITTEE REPORT
• Backpage knowingly covered up evidence of criminal
activity by systematically editing its so-called adult ads.
• Backpage knows that it facilitates prostitution and even
child sex trafficking.
• 93 percent of Backpage’s ad revenue in 2011 stemmed
from its adult section.
• Of all the child sex trafficking reports submitted by
members of the public to the CyberTipline, more than
seventy-one percent (71%) relate to Backpage ads.”
(National Center for Missing and Exploited Children)
• Backpage shuts down “adult” ads in response, but ads
migrate to other portions of the site.
CLICK TO VIEW

6. S.1693
STOP ENABLING SEX
TRAFFICKERS ACT (SESTA)
• Senator Rob Portman (R-OH),
Chairman of Senate Investigations
Subcommittee is lead sponsor
• 66 Co-sponsors
• The Communications Decency Act
is a well-intentioned law, but it was
never intended to help protect sex
traffickers who prey on the most
innocent and vulnerable among
us. This bipartisan, narrowly-
crafted bill will help protect
vulnerable women and young girls
from these horrific crimes.”

7. SESTA
• Amends Section 230 to clarify that nothing in the section
should be construed to impair enforcement of any
criminal or civil actions federal trafficking statutes (U.S.C.
Title 18, Sections 1591 and 1595) or any state criminal
prosecution or civil enforcement action targeting conduct
that violates the federal criminal law prohibiting sex
trafficking of children or sex trafficking by force, threat of
force, fraud, or coercion.
• Amends U.S.C. Title 18, Section 1591(e) to clarify that
“participation in a venture” encompasses knowing
conduct that, by any means, assists, supports, or
facilitates a violation of the section.

8. HOUSE LEGISLATION (FOSTA):
BROADER REACH
H.R. 1865 Allow States and Victims to Fight Online Sex
Trafficking Act of 2017 introduced by Ann Wagner (R-MO) and
173 Co-sponsors.
Excludes from CDA 230
• “any State criminal statute that prohibits (i) sexual
exploitation of children; (ii) sex trafficking of children; or (iii)
sex trafficking by force, threats of force, fraud, or coercion.”
• “any federal or state law that “provides causes of action,
restitution, or other civil remedies to victims of (i) sexual
exploitation of children; (ii) sex trafficking of children; or (iii)
sex trafficking by force, threats of force, fraud, or coercion.”

9. CRITICS: IS SESTA
NECESSARY?
• 2014 Stop Advertising Victims of
Exploitation Act (SAVE Act) makes
advertising sex trafficking a crime.
• New facts on Backpage may limit CDA 230
defense.
• Advocates – attacking business model not
just single company.
• May move trafficking underground and
make it harder to track.

10. WHAT STATE LAWS
WOULD APPLY?
• Could states impose new requirements under the
guise of regulating sex-trafficking?
• Will this be an invitation to litigate and create
uncertainty as each state interprets exceptions?
• Business groups – “language will have the
unintended consequence of allowing opportunistic
trial lawyers to bring a deluge of frivolous litigation
targeting legitimate, law-abiding intermediaries
and create the potential for unpredictable,
inconsistent enforcement by state authorities for
political or monetary gain.”

11. NOV. 3: TECH GIANTS
BACK AMENDED BILL
▪ The Internet Association endorsed a substitute
amendment to SESTA.
▪ Amendment redefined “participation in a
venture” to mean “knowingly assisting,
supporting, or facilitating a violation.”
▪ The amended bill also added a provision
allowing State Attorneys General, “as parens
patriae, [to] bring a civil action against such
person on behalf of the residents of the State”
in federal court.

12. NOV. 8 –
SEN COMMITTEE
PASSES SESTA
Senate Commerce Committee
unanimously approved substitute
amendment to SESTA.
Clears way for Senate vote on passage.
EXCEPT THAT . . .

13. NOV. 8 – CDA230 AUTHOR
ISSUES HOLD ON SESTA
Ron Wyden (D-OR) released the following statement:
Today I am announcing my public hold and a public warning about
SESTA. Having written several laws to combat the scourge of sex
trafficking, I take a backseat to no one on the urgency of fighting this
horrendous crime. However, I continue to be deeply troubled that
this bill’s approach will make it harder to catch dangerous criminals,
that it will favor big tech companies at the expense of startups and
that it will stifle innovation.
After 25 years of fighting these battles, I’ve learned that just because
a big technology company says something is good, doesn’t mean it’s
good for the internet or innovation. Most innovation in the digital
economy comes from the startups and small firms, the same
innovators who will be harmed or locked out of the market by this
bill. That said, I appreciate that Senators Thune and Nelson worked
to improve SESTA, including by narrowing its scope. While it still
makes inadvisable changes to bedrock internet law, those changes
are narrower than originally proposed.
REQUIRES CLOTURE VOTE (60 VOTES) TO PROCEED ON THE BILL

14. DEC 12: HOUSE JUDICIARY
APPROVES CHAIRMAN GOODLATTE’S
FOSTA SUBSTITUTE
• FOSTA as amended creates new offense of using a facility of interstate
or foreign commerce (which includes the Internet) “with the intent to
promote or facilitate the prostitution of another person”.
• Imposes aggravated penalties for anyone who does so with “reckless
disregard of the fact that such conduct contributed to sex trafficking in
violation of § 1591(a)” involving the prostitution of 5 or more persons.
• Website operator liable for damages to victims if its promotion or
facilitation of prostitution “includes responsibility for the creation or
development of all or part of the information or content provided
through any interactive computer service.”
• Amends Section 230 to enable state prosecutors to bring charges
against intermediaries under state law if the conduct underlying the
charge constitutes a violation of the new federal crime or the existing
federal anti-trafficking statute.
Bill now goes to House Energy & Commerce Committee.
House Judiciary Committee Chairman
Bob Goodlatte (R-VA)

15. Taina Bien-Aimé, Backpage and CDA 230
August 9, 2017
Prof. Eric Goldman, SESTA and CDA 230
November 15, 2017
SESTA ON CLBR

16. OTHER BILLS ADVANCING

17. H.R. 387
EMAIL PRIVACY ACT
EXISTING LAW
• Email Communications Privacy Act requires a warrant to obtain content of
communications that has been in “electronic storage” for 180 days or
less, while older records could be obtained by a subpoena.
SUMMARY
• A governmental entity may require the disclosure by a provider of
electronic communication service of the contents of a wire or electronic
communication that is in electronic storage with or otherwise stored, held,
or maintained by that service only if the governmental entity obtains a
warrant issued using the procedures described in the Federal Rules of
Criminal Procedure (or, in the case of a State court, issued using State
warrant procedures) that—
• “(1) is issued by a court of competent jurisdiction; and
• “(2) may indicate the date by which the provider must make the disclosure
to the governmental entity.
ACTION
Passed House unanimously (2/16/17). House bill identical to one passed in
114th Congress, but which Senate objected to since it failed to address
independent agencies who are unable to obtain warrants.
No Action of Senate companion S.1654 - Email Privacy Act introduced by
Senator Lee (R-UT). Rep. Kevin Yoder (R-KS)

18. S. 88, DIGIT ACT
S. 88 requires the Secretary of
Commerce to convene a working
group of Federal agencies, advised
by a steering committee of
nongovernmental stakeholders to
provide recommendations to
Congress on how to plan and
encourage the growth of IoT. This
includes policies and programs
relating to privacy, security, or
coordination among Federal
agencies with jurisdiction over IoT.
Passed Senate (8/3/17).

19. S. 770
MAIN STREET CYBERSECURITY ACT OF 2017
• S. 770 would require the Director of the
National Institute of Standards and Technology
(NIST Director) to consider small business
concerns into the existing voluntary industry-led
process for the Cybersecurity Framework. The
bill also would direct NIST, in consultation with
other relevant agencies, to develop concise,
voluntary cybersecurity resources for small
businesses in carrying out the Cybersecurity
Framework.
• Passed Senate (9/28/17)
• HR 2105 - NIST Small Business Cybersecurity Act
Passed House (10/11/17)

20. Connected Government Act
Public Law 115-114
Rep. Robin Kelly (D-IL)
Public Law No: 115-114 (01/10/2018)
Requires (1) a federal agency that creates or
redesigns a website intended for use by the public
to ensure that the website is mobile friendly, and
(2) the Office of Management and Budget to report
on agency compliance.
"Mobile friendly" means that the website is
configured in such a way that it may be navigated,
viewed, and accessed on a smartphone, tablet
computer, or similar mobile device.

21. OTHER SIGNIFICANT LEGISLATION

22. HONEST ADS ACT
• S. 1989 - Sens. Amy Klobuchar (D-MN), Mark Warner (D-VA),
John McCain (R-AZ)
H.R. 4077 – Reps. Derek Kilmer (D-WA), Mike Coffman (R-CO)
• Amends the Bipartisan Campaign Reform Act of 2002’s
definition of electioneering communication to include paid
Internet and digital advertisements.
• Requires digital platforms with at least 50,000,000 monthly
viewers to maintain a public file of all electioneering
communications purchased by a person or group who spends
more than $500.00 total on ads published on their platform.
• Requires online platforms to make all reasonable efforts to
ensure that foreign individuals and entities are not purchasing
political advertisements in order to influence the American
electorate.
Senators Klobuchar (D-MN) and Warner (D-VA)

23. ENOUGH ACT
• Ending Nonconsensual Online User Graphic Harassment (ENOUGH) Act of 2017
(H.R. 4472 / S. 2162 ). Sponsors: Senators Kamala Harris (D-CA), Amy
Klobuchar (D-MN) and Richard Burr (R-NC) and Representatives Jackie Speier
(D-CA), Katherine Clark (D-MA), Ryan Costello (R-PA), Trey Gowdy (R-SC), Walter
Jones (R-NC), Patrick Meehan (R-PA), Gregory Meeks (D-NY), and Tom Rooney
(R-FL)
• Prohibits knowing use any means or facility of interstate or foreign commerce
to distribute an intimate visual depiction of an individual (or threats thereof)
with knowledge of or reckless disregard for the lack of consent; expectation of
privacy and harm distribution could cause, AND without an objectively
reasonable belief that such distribution touches upon a matter of public
concern.
• No liability for service providers unless the provider intentionally solicits, or
knowingly and predominantly distributes, content that the provider of the
communications service has actual knowledge is in violation of this section.
• H.R. 2052, Protecting the Rights of IndiViduals Against Technological
Exploitation Act or the PRIVATE Act – makes revenge porn a violation of the
Uniform Code of Military Justice). Passed House (5/24/17)
Sen. Kamala Harris (D-CA)

24. H.R. 3067 - ONLINE SAFETY
MODERNIZATION ACT
Introduced by Rep. Katherine Clark (D-MA), a “swatting” victim, the bill:
• prohibits use of a victim’s sexually intimate visual depictions to extort or
coerce
• prohibits forcing victims to produce sexually intimate visual depictions
• prohibits knowingly transmitting false information in an effort to cause an
emergency law enforcement response
• prohibits knowingly publishing a victim’s personally identifiable
information, including sexually intimate visual depictions, with the intent
to harm
• establish a national resource center to provide information, training, and
technical assistance to improve the capacity of individuals, organizations,
and governments to address cybercrimes against individuals
Supported by Facebook, the National District Attorneys Association, the Federal Law
Enforcement Officers Association, the Anti-Defamation League, the National Network to End
Domestic Violence, the Cyber Civil Rights Initiative, Legal Momentum, Stop Online Violence
Against Women, the National Council of Women’s Organizations, the Women’s Media Center,
the FBI Agents Association, the National Coalition Against Domestic Violence, the Association
of Prosecuting Attorneys, and the National Center for Missing and Exploited Children
Rep. Katherine Clark (D-MA)

25. FTC Nominees Confirmation
Hearing Today
• Joseph Simons, an antitrust attorney with Paul
Weiss, to serve as chairman.
• Noah Phillips, chief counsel for Senate Majority
Whip John Cornyn, R-Texas
• Christine Wilson, Senior Vice President – Legal,
Regulatory and International at Delta Air Lines
• Rohit Chopra, Senior Fellow at the Consumer
Federation of America and former assistant
director and student loan ombudsman at the
Consumer Financial Protection Bureau.

26. MEANWHILE IN SACRAMENTO

27. CALIFORNIA INTERNET CONSUMER PROTECTION AND
NET NEUTRALITY ACT OF 2018
SB 460 (Sen. De León)
Prohibits (and prohibits state from contracting with providers who engage in
prohibited activity):
• (a) Blocking lawful content, applications, services, or nonharmful devices,
subject to reasonable network management practices.
• (b) Impairing or degrading lawful Internet traffic on the basis of Internet
content, application, or service, or use of a nonharmful device, subject to
reasonable network management practices.
• (c) Engaging in paid prioritization, or providing preferential treatment of
some Internet traffic to any Internet customer.
• (d) Unreasonably interfering with, or unreasonably disadvantaging, either a
customer’s ability to select, access, and use broadband Internet access
service or lawful Internet content, applications, services, or devices of the
customer’s choice, or an edge provider’s ability to make lawful content,
applications, services, or devices available to a customer.
• (e) Engaging in deceptive or misleading marketing practices that
misrepresent the treatment of Internet traffic or content to its customers.
• (f) Advertising, offering for sale, or selling broadband Internet access service
without prominently disclosing with specificity all aspects of the service
advertised, offered for sale, or sold.
California State Senate President pro
Tempore Kevin de León (D)

28. 2018 DEADLINES
Feb. 16
Last day for bills to be introduced
May 11
Last day for policy committees to hear
and report to the Floor nonfiscal bills
introduced in their house
June 1
Last day for each house to pass bills introduced in that house
June 5
California Primary
Aug. 31
Last day for each house to pass bills
Sept. 30
Last day for Governor to sign or veto bills passed by the Legislature before
Sept. 1 and in the Governor's possession on or after Sept. 1
California Governor Jerry Brown’s
Final State of the State Address

29. Bennet Kelley
Santa Monica, CA
www.internetlawcenter.net
Tw: @InternetLawCent
Los Angeles Business Journal
• Most Influential Lawyers in Digital Media
and E-Commerce
California Bar/ California Lawyers’ Ass’n
• Chair: Technology, Internet & Privacy
Interest Group, IP Section
• Past Co-chair of Cyberspace Committee of
Business Law Section
Cyber Law & Business Report
• Host of award-nominated live streaming
podcast.
29