At a Cooley virtual town hall last week, former FCC Commissioner Robert McDowell, co-chair of Cooley’s global communications practice, talked to Representative Greg Walden (OR-2) about a range of legislative and regulatory issues that the telecommunications, media and technology sectors are facing today. Representative Walden highlighted ongoing legislative efforts to ensure the health and connectivity of Americans during the COVID-19 crisis and the need for renewed efforts on the Section 230 liability shield, infrastructure security and federal privacy legislation. The interview, available online, is summarized below.
Government COVID-19 response
Representative Walden was pleased with how Washington has come together despite partisan political headwinds to come up with effective solutions for helping Americans fight the coronavirus and its economic impacts. Although he expressed satisfaction with COVID-related relief programs like the Paycheck Protection Program and broadband subsidies to keep people connected, he expressed reservations about proposals to extend targeted relief to help consumers with specific bills. Instead, he favors cash support to consumers to spend as they choose. He said such programs should not go on forever and we should not make such programs permanent.
Section 230 and immunity for third-party content on internet platforms
Responding to questions about President Trump's May 28 executive order proposing changes to the liability protection granted to internet platforms under the Communications Decency Act (Section 230 of the Communications Act), Representative Walden said that, although "sometimes platforms conveniently hide behind 230," the FCC is not the best venue to address concerns raised by the White House and others. Rather, it is Congress' job "to modernize Section 230 to work in today’s environment." If Congress does not act, Walden predicted there would continue to be “conflicting court decisions in this space and uncertainty in the marketplace."
Walden also said it is unlikely that Congress could reform Section 230 in the current legislative session, given how little time remains. However, he believes that a future Congress would be able to address Section 230 on a bipartisan basis. He also believes it is important for industry to be involved in developing a consensus on any revisions to Section 230's immunity shield.
In addressing questions about national security, Representative Walden said that there is evidence that certain state actors penetrate US networks, steal intellectual property and leave behind malware. While he said that the US is "going to be serious" in responding to these attacks, "we have a lot more work to do in this space." He noted that an important component of that work is to fund "rip and replace" to remove components of US networks purchased from companies that have been found to pose a risk to national security.
Representative Walden believes that America should take the lead on privacy and says it is unfortunate that Congress has not yet enacted federal privacy legislation. He remains hopeful that Congress can pass privacy legislation, but does not think that will happen this year.