Articles by Jennifer Huddleston

Jennifer HuddlestonJennifer Huddleston is the Director of Technology and Innovation Policy at the American Action Forum. She has a B.A. in Political Science from Wellesley College and a J.D. from the University of Alabama School of Law. Her interests are focused on the intersections of technology policy and legal issues such as online content moderation, data privacy, antitrust, and transportation innovation.


The COVID-19 pandemic has shown how important technology is for enabling social distancing measures while staying connected to friends, family, school, and work. But for some, including a number of celebrities, it has also heightened fears of emerging technologies that could further improve our connectivity. The latest technopanic should not make us fear technology that has added so much to our lives and that promises to help us even more.

Celebrities such as Keri Hilson, John Cusack, and Woody Harrelson have repeated concerns about 5G—from how it could be weakening our immune systems to even causing this pandemic. These claims about 5G have gotten serious enough that Google banned ads with misleading health information regarding 5G, and Twitter has stated it will remove tweets with 5G and health misinformation that could potentially cause harm in light of the COVID-19 pandemic. 5G is not causing the current pandemic, nor has it been linked to other health concerns. As the director of American Public Health Association Dr. Georges C. Benjamin has stated, “COVID-19 is caused by a virus that came through a natural animal source and has no relation to 5G, or any radiation linked to technology.”  As the New York Times has pointed out, much of the non-COVID-19 5G health concerns originated from Russian propaganda news source RT or trace back to a single decades-old flawed study. In short, there is no evidence to support many of the outrageous health claims regarding 5G.

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Recently, a group of Republican senators announced they plan to introduce the COVID-19 Consumer Data Protection Act of 2020 to address privacy concerns related to contact-tracing and other pandemic-related apps. This new bill will reinvigorate many of the ongoing concerns regarding a potential federal data privacy framework.

Even before the bill has been officially introduced, it has faced criticism from some groups for failing to sufficiently protect consumers. But a more regulatory approach that might appear protective on the surface also has consequences. The European Union’s (EU) General Data Protection Regulation (GDPR) has made it more complex to develop compliant contact-tracing apps and to run charitable responses that might need personal information. Ideally, data privacy policy around the specific COVID-19 concerns should have enough certainty to enable innovative responses while preserving civil liberties. Policymakers should approach this policy area in a way that enables consumers to choose which options work best for their own privacy preferences and not dictate a one-size-fits-all set of privacy standards.

A quick review of the current landscape of the data privacy policy debate

Unlike the EU, the United States has taken an approach that only creates privacy regulation for specific types of data. Specific frameworks address those areas that consumers would likely consider the most sensitive and expect increased protection, such as financial information, health information, and children’s information. In general, this approach has allowed new and innovative uses of data to flourish.

Following various scandals and data breaches and the expansive regulatory requirements of the EU’s GDPR, policymakers, advocates, consumers, and tech companies have begun to question if the United States should follow Europe’s lead, or instead create a different federal data protection framework, or even maintain the status quo. In the absence of federal action, states such as California have passed their own data privacy laws. The California Consumer Privacy Act (CCPA) became effective in January (you may remember a flurry of emails notifying you of privacy policy changes) and is set to become enforceable July 1. The lack of a federal framework means, with various state laws, the United States could go from an innovation-enabling hands-off approach to a disruptive patchwork, creating confusion for both consumers and innovators. A patchwork means that some beneficial products might not be available in all states because of differing requirements or that the most restrictive parts of a state’s law might become the de facto rule. To avoid this scenario, a federal framework would provide certainty to innovators creating beneficial uses of data such as contact-tracing apps (and the consumers that use them) while also clarifying the redress and any necessary checks to prevent harm.

Questions of Enforcement in the Data Privacy Debate

One key roadblock in achieving a federal privacy framework whether is the question of how such rules should be enforced. Some of the early criticism of the potential COVID-19 data privacy bill has been about the anticipated lack of additional enforcement.

Often the choices for data privacy enforcement are portrayed as a false dichotomy between the status quo or an aggressive private right of action, with neither side willing to give way. In reality, as I discuss in a new primer, there are a wide range of options for potential enforcement. Policymakers should build on the advantages of the current flexible approach that has allowed American innovation to flourish. This also provides a key opportunity to improve the certainty for both innovators and consumers when it comes to new uses of data. More precautionary and regulatory approaches could increase the cost and discourage innovation by burdening innovative products with the need for pre-approval. Ideally, a policy framework should preserve consumers and innovators’ ability to make a wide range of privacy choices but still provides redress in the case of fraudulent claims or other wrongful action.

There are tradeoffs in all approaches. Current Federal Trade Commission (FTC) enforcement has led to concerns around the use of consent decrees and the need for clarity. A new agency to govern data privacy could be a massive expansion of the administrative state. State attorneys general might interpret and enforce federal privacy law differently if not given clear guidance from the FTC or Congress. A private right of action could deter not only potentially harmful innovation but prevent consumers from receiving beneficial products out of concerns about litigation risks. I discuss each of these options and tradeoffs in more detail in the new primer mentioned earlier.

Policymakers should look to the success of the current approach and modify and increase enforcement to improve that approach, rather than pursue other options that could lead to some of the more pronounced consequences of intervention.

Conclusion

As we are seeing play out during the current crisis, all privacy regulation inevitably comes with tradeoffs. We should be cautious of policies that presume that privacy should always be the preferred value and instead look to address the areas of harm while allowing a wide range of preferences. When it comes to questions of enforcement and other areas of privacy legislation, policymakers should look to preserve the benefits of the American approach that has given rise to a great deal of innovation that could not have been predicted or dictated.

Autonomous vehicles are quickly becoming a reality. Waymo just launched a driverless taxi service in Arizona. Part of GM’s cuts were based on a decision to refocus their efforts around autonomous vehicle technology. Tesla seems to repeatedly be promising more and more features that take us closer than ever to a self-driving future. Much of this progress has been supported by the light touch approach that has been taken by both state and federal regulators up to this point. This approach has allowed the technology to rapidly develop, and the potential impact of federal legislation that might detour this progress should be cautiously considered.

For over a year, the Senate has considered passing federal legislation for autonomous vehicle technology, the AV START Act, after similar legislation already passed the House of Representatives. This bill would clarify the appropriate roles for state and federal authorities and preempting some state actions when it comes to regulating autonomous vehicles and will hopefully end some of the patchwork problems that have emerged. While federal legislation regarding preemption may be necessary for autonomous vehicles to truly revolutionize transportation, other parts of the bill could create increased regulatory burdens that actually add speed bumps on the path of this life-saving innovation.

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There has been an increasing outcry recently from conservatives that social media is conspiring to silence their voices.  Leading voices including President Donald Trump and Senator Ted Cruz have started calling for legislative or regulatory actions to correct this perceived “bias”. But these calls for fairness miss the importance of allowing such services to develop their own terms and for users to determine what services to use and the benefit that such services have been to conservatives.

Social media is becoming a part of our everyday lives and recent events have only increased our general awareness of this fact. More than half of American adults login to Facebook on a daily basis. As a result, some policymakers have argued that such sites are the new public square. In general, the First Amendment strictly limits what the government can do to limit speakers in public spaces and requires that such limits be applied equally to different points of view. At the same time, private entities are generally allowed to set terms regarding what speech may or may not be allowed on their own platforms.

The argument that modern day websites are the new public square and must maintain a neutral view point was recently rejected in a lawsuit between PraegerU and YouTube. Praeger believed that its conservative viewpoint was being silenced by YouTube decision to place many of its videos in “restricted mode.” In this case, the court found that YouTube was still acting as a private service rather than one filling a typical government role. Other cases have similarly asserted that Internet intermediaries have First Amendment rights to reject or limit ads or content as part of their own rights to speak or not speak. Conservatives have long been proponents of property rights, freedom of association, and free markets. But now, faced with platforms choosing to exercise their rights, rather than defend those values and compete in the market some “conservatives” are arguing for legislation or utilizing litigation to bully the marketplace of ideas into giving them a louder microphone. In fact, part of the purpose behind creating the liability immunity (known as Section 230) for such services was the principle that a variety of platforms would emerge with different standards and new and diverse communities could be created and evolve to serve different audiences.

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There are a growing number of voices raising concerns about privacy rights and data security in the wake of news of data breaches and potential influence. The European Union (EU) recently adopted the heavily restrictive General Data Privacy Rule (GDPR) that favors individual privacy over innovation or the right to speak. While there has been some discussion of potential federal legislation related to data privacy, none of these attempts has truly gained traction beyond existing special protections for vulnerable users (like children) or specific information (like that of healthcare and finances). Some states, notably including California, are attempting to solve this perceived problem of data privacy on their own, but often are creating bigger problems and passing potentially unconstitutional and often poorly drafted solutions.

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The Internet is a great tool for women’s empowerment, because it gives us the freedom to better our lives in ways that previously far more limited. Today, the FCC’s Restoring Internet Freedom Order helped the Internet become even freer.

There is a lot of misinformation and scare tactics about the previous administration’s so-called “net neutrality” rules. But the Obama-era Open Internet Order regulations were not neutral at all. Rather, they ham-handedly forced Internet Service Providers (ISPs) into a Depression-era regulatory classification known as a Title II common carrier. This would have slowed Internet dynamism, and with it, opportunities for women.

Today’s deregulatory move by the FCC reverses that decision, which will allow more ISPs to enter the market. More players in the market make Internet service better, faster, cheaper, and more wildly available. This is especially good for women who have especially benefited from the increased connectivity and flexibility that the Internet has provided.

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The recently enacted Stop Enabling Sex Trafficking Act (SESTA) has many problems including that it doesn’t achieve its stated purpose of stopping sex trafficking. It contains a retroactivity clause that appears facially unconstitutional, but this provision would likely be severable by courts if used as the sole basis of a legal challenge. Perhaps more concerning are the potential First Amendment violations of the law.

These concerns go far beyond the rights of websites as speakers, but to the individual users’ content generation. Promoting sex trafficking is already a crime and a lawful restraint on speech. Websites, however, have acted broadly and quickly due to concerns of their new liability under the law and as a result lawful speech has also been stifled.

Given the controversial nature of the law it seems likely that a legal challenge is forthcoming. Here are three ideas about what a First Amendment challenge to the law might look like.

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Last Friday, law enforcement agencies shutdown Backpage.com. The website has become infamous for its role in sex trafficking, particularly related to underage victims, and its shutdown is rightly being applaud by many as a significant win for preventing sex trafficking online. This shutdown shows, however, that prosecutors had the tools necessary to go after bad actors prior to the passage of the Stop Enabling Sex Traffickers Act (SESTA) last month. Unfortunately, this is not the first time the government has pushed for regulation of technology knowing it already had the tools and information needed to build a case against bad actors.

The version of SESTA passed by Congress last month included a number of poorly thought through components including an ex post facto application and poorly articulated definitions, but it passed both houses of Congress with little opposition. In fact, because the law was seen as a must pass and linked to sex trafficking, the Senate even overwhelming rejected an amendment to provide additional funding for prosecuting such crimes. Even without being signed into law, SESTA has already resulted in Reddit and Craigslist removing communities from their platforms within days of its passage. What this most recent event shows is the government already had the tools to go after the bad actors like Backpage, but failed to use them as Congress debated and passed a law that chipped away at the protection for the rest of the Internet and gave the government even broader powers.

This is not the first time that the government has encouraged through either its action or inaction damaging regulation of disruptive technology while knowing that it had tools at its disposal that could achieve the desired results without the need for an additional regulatory burden. In 2016, the government argued following the San Bernadino shootings that it need more access to encrypted devices like the iPhone when Apple refused to comply with a writ compelling it to unlock the shooters’ phones. The Senate responded to the controversy by proposing a bill that would require business like Apple to assist authorities in gaining access to encrypted devices. Thankfully, because the FBI was able to gain the information needed without Apple through a third party vendor, such calls largely diminished and the legislation never went anywhere.  Now, a recent Office of the Inspector General report has revealed the FBI “testified inaccurately or made false statements” regarding its ability to gain data from the encrypted iPhone.

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SESTA passed the Senate last week after having previously passed the House. President Trump is expected to sign it into law despite the opposition to this version of the bill from the Department of Justice. As I have previously written about, there are a great deal of concerns about how the bill may actually make it harder to address online sex trafficking and more generally impact innovation on the Internet.

The reality is that we are looking at a post-SESTA world without the full protection of Section 230 and that reality will likely end up far from the best case scenario, but hopefully not fully at the worst. Intermediaries, however, do not have the luxury to wait around and see how the law actually plays out, especially given its retroactive provision. As a result, Reddit has already deleted a variety of sub-reddits and Craigslist has closed its entire personals section. One can only imagine the difficult decisions facing the creators of dating apps or messaging services.

So what can we expect to happen now…

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While the Net Neutrality debate has been in the foreground, Congress has been quietly moving forward legislation that risks fundamentally modifying the liability protection for Internet intermediaries like Facebook, Google, and PayPal, and forever changing the Internet. The proposed legislation has good intentions of stopping sex trafficking, but in an effort to stop a few bad actors the current overly broad version of the bill risks not only stopping the next Internet innovation, but also failing to achieve even this laudable goal.

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