Hillicon Valley — Presented by Facebook — Federal court rules tech giants can censor content | Trump upends surveillance fight | Senate passes bill barring federal funds for Huawei equipment

by Maggie Miller,Emily Birnbaum and Chris Mills Rodrigo - 02/27/20 6:16 PM ET

Welcome to Hillicon Valley, The Hill’s newsletter detailing all you need to know about the tech and cyber news from Capitol Hill to Silicon Valley. If you don’t already, be sure to sign up for our newsletter with this LINK.

Welcome! Follow the cyber team, Maggie Miller (@magmill95), and the tech team, Emily Birnbaum (@birnbaum_e) and Chris Mills Rodrigo (@chrisismills).

BRING IN THE CENSORS: A federal appeals court on Wednesday ruled that internet giants like Google and Facebook can censor content on their platforms, rebuking arguments from conservatives who claim the tech companies violate users’ First Amendment rights by removing certain messages or videos.

With its unanimous opinion, the 9th U.S. Circuit Court of Appeals became the latest court to dismiss arguments that platforms like YouTube can be sued under the First Amendment for decisions on content moderation.

“Despite YouTube’s ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment,” Circuit Judge M. Margaret McKeown, a Clinton appointee, wrote in the opinion.

The three-judge panel upheld a lower court’s decision to dismiss the case.

Dennis Prager, founder of the conservative advocacy organization Prager University, first sued Google in 2017 over claims that its subsidiary YouTube was prioritizing left-leaning content over Prager U’s popular conservative videos.

Prager U lost the case when U.S. District Judge Lucy Koh, an Obama appointee, declared that YouTube is a private company and therefore can’t be treated similarly to state actors.

Prager argued that YouTube, which has 2 billion users worldwide, functions as a “public square” because of its ubiquity.

But on Wednesday, McKeown wrote, “YouTube does not perform a public function by inviting public discourse on its property. To characterize YouTube as a public forum would be a paradigm shift.”

Google has continued to insist that its products are not politically biased and that Prager’s claims were “meritless.”

Read more here.

The Hill’s Jordain Carney has more here on how Trump is upending the surveillance fight.

POST-IMPEACHMENT HAZE: Just one month after arguing on a united front for President Trump’s removal from office, three former House impeachment managers team are locked in a fierce battle over a controversial government surveillance bill.

Rep. Zoe Lofgren (D-Calif.), a senior member on the House Judiciary Committee, threw plans to reauthorize some intelligence provisions in the USA Freedom Act into a tailspin Wednesday after she threatened to hold votes on several surveillance-related amendments.

The move not only forced Chairman Jerrold Nadler (D-N.Y.) to postpone consideration of the broader legislation, which he negotiated for months with House Intelligence Chairman Adam Schiff (D-Calif.) and Speaker Nancy Pelosi (D-Calif.), it also pitted the two chairmen against a former teammate from the weeks-long Democratic effort to carefully lay out a case against Trump during the Senate impeachment trial.

The back and forth comes amid a debate over whether to pass a reauthorization bill that could glide through the Senate or one heavy with reforms that might fail to garner enough support for passage in the upper chamber.

A group of House Democrats and Republicans want to fold in amendments to reform the Foreign Intelligence Surveillance Act (FISA) court following a government watchdog’s assessment last year that found 17 “significant errors and omissions” by law enforcement officials in their efforts to obtain a wiretap on former Trump campaign adviser Carter Page.

Lofgren, who dismissed the notion that there was a personal rift between her and the two Democratic chairmen, is pushing to introduce legislation that would create more oversight over the FISA court and significantly curtail the amount of sensitive information the government is allowed to collect on Americans. She felt Nadler and Schiff’s bill did not go far enough to achieve that.

“This is about policy,” Lofgren told The Hill in a phone interview, noting that she attended a reception for impeachment managers with both Nadler and Schiff on Wednesday night, just hours after the showdown over the surveillance provisions.

“I’m pursuing a policy that I think is consistent with the Constitution and serves the American people,” she continued, adding that doing so “is not new for me.”

Lofgren’s FISA amendments upset the chairmen’s hopes of moving forward a clean bill. The future of the controversial government surveillance provisions is now in limbo with a mid-March deadline approaching.

And despite the claims of amicable relations, some Judiciary sources described a lingering rivalry between the two, citing this tug of war over surveillance policy as the latest example.

Asked about progress in the FISA negotiations, Pelosi acknowledged the delay over key sticking points but also expressed hope that a compromise is possible before the programs expire on March 15.

“I was there for some of the FISA revisions in the past,” Pelosi said Thursday at her weekly press conference. “The goal is to have the right balance between civil liberties and national security. I think the bill that was put together in the Judiciary Committee, working with the Intelligence Committee, does that. There are others who would like to see some other provisions, we’re just working through that now, with respect for everyone’s point of view.”

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BAD NEWS FOR HUAWEI: The Senate unanimously approved legislation on Thursday that would ban the use of federal funds to purchase telecommunications equipment from companies deemed a national security threat, such as Chinese group Huawei.

The bipartisan Secure and Trusted Telecommunications Networks Act, which the House passed in December, bans the Federal Communications Commission (FCC) from giving funds to U.S. telecom groups to purchase equipment from companies deemed threats.

The bill would require the FCC to establish a $1 billion fund to help smaller telecom providers to rip out and replace equipment from such companies, and to compile a list of firms seen as posing a threat to telecom networks.

The bill is primarily sponsored by House Energy and Commerce Committee Chairman Frank Pallone (D-N.J.), ranking member Greg Walden (R-Ore.), and Reps. Doris Matsui (D-Calif.) and Brett Guthrie (R-Ky.).

Senate Commerce Committee Chairman Roger Wicker (R-Miss.), whose panel has jurisdiction over the bill, praised its passage.

“Telecommunications equipment from certain foreign adversaries poses a significant threat to our national security, economic prosperity, and the future of U.S. leadership in advanced wireless technology,” Wicker said in a statement. “By establishing a ‘rip and replace’ program, this legislation will provide meaningful safeguards for our communications networks and more secure connections for Americans.”

The legislation, if signed into law by President Trump, would have a major impact on rural telecom providers. The Rural Wireless Association estimated in a 2018 filing to the FCC that around 25 percent of its member companies use equipment from either Huawei or Chinese group ZTE.

Read more here.

DEMS PRESS FACEBOOK ON GUN SALES: A group of Democratic senators sent a letter Thursday pressing Facebook over private gun sales on the platform.

“[D]espite Facebook’s ban of gun sales on its platforms, users are nonetheless able to facilitate firearm transactions in private Facebook groups specifically designed to skirt Facebook’s ban on firearm sales,” the 13 senators wrote in the letter to Facebook CEO Mark Zuckerberg.

Facebook first banned the sale of firearms on the platform in 2016, then in 2018 it added proactive measures to identify sellers after pressure from lawmakers.

“We have concerns that those measures fall short,” the lawmakers led by Sens. Bob Menendez (D-N.J.) and Ed Markey (D-Mass.) wrote in the letter to Facebook.

The senators are demanding answers to a series of questions — including how many private groups Facebook has banned for violating the firearm sale policy and how the company coordinates with law enforcement — by March 12.

Read more here.

CORONAVIRUS CONCERNS: Facebook on Thursday announced it is cancelling its annual developer conference because of the spread of the coronavirus.

“This was a tough call to make — F8 is an incredibly important event for Facebook and it’s one of our favorite ways to celebrate all of you from around the world — but we need to prioritize the health and safety of our developer partners, employees and everyone who helps put F8 on,” Konstantinos Papamiltiadis, director of platform partnerships at Facebook, wrote in a blog post announcing the cancellation.

“We explored other ways to keep the in-person part of F8, but it’s important to us to host an inclusive event and it didn’t feel right to have F8 without our international developers in attendance.”

The annual conference was scheduled for May 5 and 6 in San Jose, Calif.

The Centers for Disease Control and Prevention confirmed Wednesday the first U.S. coronavirus case of unknown origin in Northern California. On Thursday, California Gov. Gavin Newsom (D) said the state was monitoring over 8,400 people for the virus.

Read more here.

THAT’S A NO: More than 150 faculty members and academics have signed on to a campaign opposing the use of facial recognition technology on college campuses.

Their letter, published online Thursday, urges institutions of higher learning to ban the technology, which scans faces for the purpose of identifying individuals, citing bias and civil rights concerns.

“We believe it is our duty to protect our campuses as learning environments where our students, fellow staff, and community members are safe, and that the constant surveillance of facial recognition threatens our human rights and privacy,” wrote the current and former educators from schools including Harvard, Yale and Stanford.

“Students should not have to trade their right to safety and privacy for an education.”

The letter from educators is part of a wider campaign led by Fight for the Future and college group Students for Sensible Drug Policy to block the controversial tech from colleges.

Read more here.

THE RUSSIANS ARE COMING: An online “impersonator” pretending to be a Democratic National Committee (DNC) staffer tried to contact presidential campaigns, including Sen. Bernie Sanders’s (I-Vt.) campaign, the committee said in a statement to the candidates Wednesday.

Bob Lord, the DNC’s chief security officer, wrote in an email to the campaigns obtained by The Hill that “adversaries will often try to impersonate real people on a campaign.”

He added that the “adversaries” could try to get campaign workers to “download suspicious files, or click on a link to a phishing site” or set up calls or in-person meetings to record and release.

Lord warned that the “impersonator” contacted the Sanders campaign and at least two others and had a domain registered overseas. But he acknowledged that anyone can register a domain name in any country.

“Attribution is notoriously hard,” he wrote. “The appropriate authorities have been alerted.”

“If you are using an alternate domain, please refrain from doing so and let us know if you are operating from a domain that others have not corresponded with before,” Lord added. “Do not use your personal mail account for official business.”

Read more here.

A LIGHTER CLICK: Quality treatment

AN OP-ED TO CHEW ON: There’s no election law about social media disclosures–but there oughta be

NOTABLE LINKS FROM AROUND THE WEB:

Clearview’s facial recognition app has been used by the Justice Department, ICE, Macy’s, Walmart, and the NBA (BuzzFeed News / Ryan Mac, Caroline Haskins and Logan McDonald)

Coronavirus is the first big test for futuristic tech that can prevent pandemics (Recode / Rebecca Heilweil)

Google’s black box algorithm controls which political emails land in your main inbox. For 2020 presidential candidates, the differences are stark. (The Markup / Adrianne Jeffries, Leon Yin and Surya Mattu)

Pete Buttigieg is canvassing his Twitter followers ahead of Super Tuesday (The Verge / Makena Kelly)