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Children’s Online Safety Bills Criticized for Compliance Burden, Plus Speech and Privacy Risks

States are considering measures ranging from age verification to a “duty of care.”

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Screenshot of Matthew Feeney, head of technology and innovation at the Centre for Policy Studies, at the Cato Institute event

WASHINGTON, March 17, 2023 — As an increasing number of states start to consider and implement their own laws aimed at protecting children’s online safety, some experts are highlighting concerns about the practical implications of the resulting legislative “patchwork” — as well as concerns that some proposals might actually harm consumers’ digital privacy.

“States have realized that the federal government is going to be very slow in acting in this area,” said James Czerniawski, senior policy analyst at Americans for Prosperity. “So they’re going to try to take the lead here.”

Speaking at a Cato Institute forum on Wednesday, Czerniawski described the two competing approaches that have emerged among the various state laws and proposals.

The first is typified by California’s Age Appropriate Design Code Act, passed in August 2022, which requires that online platforms proactively prioritize the privacy of underage users by default and by design. Many aspects of the law are modeled after the United Kingdom’s Online Safety Bill, a controversial proposal that would establish some of the world’s most stringent internet regulations.

The second approach focuses on age verification, such as Utah legislation that will require social media companies to verify the age of Utah residents before allowing them to create or keep accounts.

In addition to those two core directions, many of the state proposals have their own unique twists, Czerniawski said. For example, the Utah legislation prohibits any design choice that “causes a minor to have an addiction to the company’s social media platform.” While the bill has not yet been signed, Gov. Spencer Cox has previously indicated his intent to do so.

For online platforms that operate nationally or internationally, complying with a growing range of disparate state privacy laws will only become more complicated, Czerniawski said. “This patchwork doesn’t work.”

Potential unintended consequences for free speech, competition and privacy

Some experts have raised concerns that legislation intended to protect children online could have unintended consequences for the privacy and speech rights of adult users.

Matthew Feeney, head of technology and innovation at the Centre for Policy Studies, argued that a heavy compliance burden could incentivize online platforms to over-moderate content. “Given the punitive fines attached to the Online Safety Bill, I think they will engage in an abundance of caution and remove a lot of legal and valuable speech.”

The task of determining which users are underage and then figuring out how to prevent them from seeing any harmful content presents a significant challenge for platforms that host a massive amount of user-generated content, Feeney said.

“Something that’s very crucial to understand is that if you require firms to treat children differently, then you’re asking them to find out which of their users are children — and that is not free; that is a cost,” he added. “And for many firms, I think it will just be cheaper to err on the side of caution and assume all users are children.”

In addition to the implications for online speech, Feeney expressed concern that the regulatory burden adds a “very worrying anti-competitive element” to the legislation. “Most of the companies that will be in scope do not have the army of lawyers and engineers that Meta and Google have,” he said.

While the age verification measures might be easier in terms of compliance, Feeney said, they might ironically create their own risk to children’s online privacy by mandating the collection of highly identifying data.

Czerniawski agreed, specifically pointing to TikTok. “From a privacy standpoint, it seems a little odd that we want to have a company that currently has some security concerns collecting more information on kids in order to continue operating in the country,” he said.

Despite agreeing that there may be legitimate concerns about TikTok’s privacy practices, Czerniawski again argued that many of the proposed solutions — such as a complete national ban — fail to address the actual problem.

“If you’re truly concerned about the privacy issues that TikTok has raised, that’s why… we need a federal data privacy law passed, right? I think that that can go a long way towards solving a lot of those issues,” he said.

In terms of child-specific legislation, Czerniawski called for a more narrowly targeted approach to address problems such as the proliferation of online child sexual abuse material without risking the privacy and free speech rights of all other internet users. “We have to be very serious when we’re looking at trade-offs that are involved here,” he said.

Reporter Em McPhie studied communication design and writing at Washington University in St. Louis, where she was a managing editor for the student newspaper. In addition to agency and freelance marketing experience, she has reported extensively on Section 230, big tech, and rural broadband access. She is a founding board member of Code Open Sesame, an organization that teaches computer programming skills to underprivileged children.

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Broadband Mapping & Data

Robocalls, Rip and Replace, Pole Attachments: More Notes From the FCC Oversight Hearing

Commissioners and House lawmakers discussed key topics at a contentious hearing.

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Screenshot of commissioners at the hearing Thursday.

WASHINGTON, December 1, 2023 – All five Federal Communications Commissioners took part in a lengthy and at times contentious House oversight hearing on Thursday.

Commissioners urged Congress to restore the FCC’s authority to action spectrum, which expired in March and left the nation’s airwaves in limbo, and to fund the Affordable Connectivity Program, the low-income internet subsidy set to dry up in April of next year. 

GOP lawmakers FCC Republicans also took the chance to slam efforts by the commission’s Democratic majority.

The discussion touched on other issues including robocall prevention, rip and replace funding, and pole attachments.

Robocalls

The commission has been taking action on preventing robocalls this year, kicking off an inquiry into using artificial intelligence to detect fraud, blocking call traffic from 20 providers for lax enforcement policies and issuing hundreds of millions in fines. In August the commission also expanded the STIR/SHAKEN regime – a set of measures to confirm caller identities – to all providers who handle call traffic.

FCC Chairwoman Jessica Rosenworcel asked multiple times for three Congressional actions she said would help the commission crack down on scam calls: a new definition for “autodialer,” the ability to collect fines, and access to Bank Secrecy Act information.

The Supreme Court limited the definition of autodialers in 2021 to devices that store or produce phone numbers with random or sequential number generators. That leaves the scope of the Telephone Consumer Protection Act, which guides the FCC’s authority, “stuck in the nineties,” according to Rosenworcel.

“A lot of scam artists are using technologies no longer covered” by the act, she said. “We can’t go after them.”

On collecting robocall fines, that authority currently rests with the Department of Justice, and Rosenworcel is not the first to tell Congress the agency’s enforcement has been lax. Industry groups at an October Senate hearing cited slow DOJ action as a major reason FCC fines on the issue often go uncollected.

The Bank Secrecy Act requires financial institutions to keep records on certain transactions to help law enforcement agencies track money laundering and other criminal activity. The FCC cannot access information governed by the act, which Rosenworcel said would help the commission go after repeat scammers.

“These scam artists set up one company, we shut them down, they go and set another one up,” she said.

Rip and replace

Commissioners urged Congress to fund the rip and replace program. Congress allocated $1.9 billion to reimburse broadband companies for replacing network equipment from Chinese companies deemed to be national security threats, mainly Huawei and ZTE.

The FCC was tasked with overseeing the program and found in 2022 that another $3 billion would be needed to get the work done. The Biden administration joined a chorus of lawmakers and broadband companies in calling for Congress to fill the gap, but legislation on the issue has yet to be passed.

“We’re providing 40 cents on the dollar to a lot of small and rural carriers,” said Rosenworcel. “They need more funds to get the job done.”

The commission has been granting extensions to providers unable to get the work done on time. In addition to supply chain issues, some small providers cite a lack of funding as the reason they’re unable to replace insecure equipment.

Pole attachments

Commissioners expressed a willingness to shift some of the burden of utility pole replacements off of broadband providers as they attach new equipment.

“If a pole is getting replaced,” Commissioner Brendan Carr said, “there’s probably a role for the FCC to say that the pole owner should bear somewhere north of the cost of $0.”

The commission has authority in 26 states over most pole attachment deals between utility pole owners and telecommunications companies looking to expand their networks. The issue of who pays for poles that need to be replaced to accommodate more communications equipment is contentious, with telecoms arguing utilities force them to pay for replacing already junk poles. 

After spending years sifting through thousands of comments, commissioners have apparently been persuaded. Rules up for a vote at the commission’s December meeting would limit the scenarios in which utilities could pass full replacement costs on to attachers.

Broadband funding map

Rosenworcel repeatedly asked lawmakers to work with the commission on ensuring its broadband funding map is kept up to date.

The FCC launched its funding map in May to keep track of the myriad federal broadband subsidy efforts and avoid funding the same areas multiple times. The Department of Agriculture, the FCC, and the Treasury Department each oversee separate broadband funding programs, in addition to the Commerce Department’s upcoming $42.5 billion broadband expansion effort.

The commission has signed memoranda of understanding with those agencies on providing data for the funding map, but Rosenworcel asked the subcommittee for help ensuring the agencies follow through and respond to FCC requests for their funding data. 

“If you could help us make sure those other agencies respond to us with data, you’ll see where there are problems, duplication, areas we haven’t reached,” she said.

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Cybersecurity

Cybersecurity Requirements in BEAD Could Shape Internet Security Regulation More Widely

The Broadband Equity, Access and Deployment program requires ISPs and states to submit comprehensive cybersecurity plans.

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WASHINGTON, November 2, 2023 – How states implement cybersecurity rules in the $42.5 billion Broadband Equity, Access and Deployment program could shape internet security regulations more widely, experts said during a virtual panel Wednesday.

The BEAD program, which will provide federal grants to states to disperse for broadband projects, requires providers to submit comprehensive cybersecurity plans based on standards from the National Institute of Standards and Technology. Panelists said flexibility in the plans allows customization but also establishes baseline expectations as critical infrastructure relies more on connected technology.

“I think the way that states and entities interpret these BEAD cybersecurity and supply chain requirements is really going to have a ripple effect across the whole community,” said Savannah Schaefer, an attorney of Wilkinson Barker Knauer, who advises clients on cybersecurity.

Federal Communications Commission rules are beginning to include similar mandates, meaning how states implement BEAD’s requirements could influence cybersecurity regulations more broadly, Schaefer said.

Melissa Newman, vice president of government Affairs at the Telecommunications Industry Association, said BEAD’s cybersecurity stipulations cite lengthy federal guidance documents providers must wade through. Her trade group developed a checklist to help companies understand the rules.

“You cannot be confident in the security of your networks and products without consideration of both cyber and supply chain security,” said Newman, TIA’s vice president of government affairs.

Supply chain management, knowing who provides equipment and software, is critical because cybersecurity threats can be embedded throughout a product’s lifecycle, she said.

Evan Rice, senior vice president of Guide Star, a division of CCI Systems, said providers should start by documenting current cyber practices, identifying gaps and making plans to address them. Cybersecurity must be incorporated holistically, from network construction to long-term operation, he said.

“Everyone understands that piece. The cybersecurity is the same. Once you build it, you have to operate it,” said Rice. Schaefer encouraged viewing BEAD as part of an ongoing process of shaping cybersecurity requirements.

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, November 1, 2023 – Cybersecurity and BEAD

To qualify for funding under the Broadband Equity, Access and Deployment program, network operators must submit a comprehensive cybersecurity strategy in line with the National Institute of Standards and Technology’s cybersecurity framework. What impacts do these requirements have on broadband deployers, and what steps can they take to ensure compliance? How can operators strike the right balance between expanding their networks and safeguarding them against cyber threats?

Panelists

  • Evan Rice, Senior Vice President, Guide Star
  • Savannah Schaefer, Wilkinson Barker Knauer LLP
  • Melissa Newman, Vice President of Government Affairs, Telecommunications Industry Association
  • Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Evan Rice is an experienced IT executive with a focus on cyber security and operational excellence. Evan currently serves as the Senior Vice President of Guide Star, a division of CCI Systems. Evan has been with CCI Systems since 2012, starting as a Data Services Professional then moving to the Vice President of Information Technology role prior to his current position at Guide Star.

As an Associate at Wilkinson Barker Knauer LLP, Savannah Schaefer advises clients on a range of issues pertaining to cybersecurity, supply chain risk management, and emerging technology. Prior to joining the firm, Savannah represented companies in the information and communications technology sector at two trade associations where she led development and advocacy of the associations’ cybersecurity and supply chain legal and policy positions. She has also served in leadership roles in the IT and Communications Sector Coordinating Councils and on the Department of Homeland Security’s ICT Supply Chain Risk Management Task Force.

Melissa Newman has over 25 years’ experience in government affairs for the telecommunications sector.  Prior to Melissa joining TIA as Vice President of Government Affairs, she worked at Transit Wireless heading the Legal and External Affairs departments; Wilkinson Barker Knauer, a premier telecommunications law firm in Washington, DC; CenturyLink (now Lumen) as Vice President, Federal Policy and Regulatory Affairs; and as Deputy Division Chief of the Policy Division in the Common Carrier Bureau of the FCC.

Breakfast Media LLC CEO Drew Clark has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.

WATCH HERE, or on YouTubeTwitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTubeTwitter and Facebook.

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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Cybersecurity

White Houses Asks Congress to Fill Rip and Replace Funding Gap

The $3 billion shortfall was first flagged by the FCC in July 2022.

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Photo of Joe Biden and Jill Biden in 2019 by Gage Skidmore.

WASHINGTON, October 26, 2023 – The Joe Biden administration is asking Congress to fill the $3 billion gap in the Federal Communications Commission’s rip and replace program, among other domestic needs.

The ask came Wednesday as part of a $55.9 billion request for domestic aid, including disaster relief and child care subsidies. Also in the White House’s request was $6 billion to continue the Affordable Connectivity Program, the monthly internet subsidy that’s set to dry up in April 2024 without additional funding.

In 2020, Congress required broadband providers to replace equipment from some Chinese companies, including Huawei and ZTE, citing concerns that it could be used for espionage. The effort was funded with $1.9 billion to reimburse companies for the cost of switching out gear.

But in July 2022 the FCC, which oversees the program, said broadband providers would need $4.98 billion to get the work done. There have since been repeated calls from lawmakers and industry to shore up the fund. Bills have been introduced in both the House and Senate to fill the $3 billion gap, but they have yet to be passed.

The deadline for approved companies to request reimbursement for rip and replace work passed on July 15. By default, companies have one year from the approval of that request to remove the Chinese equipment, but the commission has been granting deadline extensions as providers complain of funding troubles.

House Republicans managed to elect a speaker on the same day as the funding request, ending weeks of deadlock.

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