Thread by @leah_nylen

Senate Judiciary markup on S 2992 underway. Sen. Durbin says there are 102 (!) amendments that have been filed. It's gonna be a day.

Correction: 107 amendments, 82 from one senator.

Sen. Grassley: “This bill is not meant to break up Big Tech or destroy the products and services they offer. The goal is prevent conduct that stifles competition.”

The manager's amdt seeks to address the national security concerns by ensuring data doesn't have to be shared with bad actors and covering Chinese tech platforms like TikTok, Grassley says.

We're doing the judicial nominations first so it'll be a couple mins before this gets underway for real.

And now we're on the bill for real.

Klobuchar: "“We have to look at this differently than just startup companies in a garage that’s not what they are anymore. They are dominant companies. ...And we haven’t meaningfully updated our antitrust laws since the birth of the internet.

Klo goes through some of the changes in the managers amdt: clarify that certain types of privacy enhancing conduct would be allowed and permitted; apply to companies not publicly traded (TikTok); subscriptions not covered; companies have 1 yr to come into compliance

Manager's amdt adopted by voice vote.

Sen. Whitehouse (D-R.I.) asks to be added as a co-sponsor.

Sen. Leahy (D-Vt.) says he will vote to report but wants some changes before floor vote. He is concerned it makes it too hard to protect consumer privacy, could lead to a "race to the bottom" on privacy.

Sen Lee (R-Utah) say he wants to “get to yes. I'm not there yet." He worries that it may entrench the four companies by creating incentive to cease doing business with others.

Lee: "I’m for stopping Big Tech’s unjust and anticompetitive behavior. But I can’t do it in good conscience in such a way that risks such collateral damage as this bill presents."

Klobuchar is not having Lee's criticism that this bill isn't thought through, pointing out that the R's witness from their December hearing testified in favor of it and that most state AGs are in favor.

Sen. Feinstein (D-Calif.) is "very concerned" about the bill saying it targets only a few companies in her state and creates two standards, one for them and one for everyone else.

Feinstein says the bill could be "dangerous" and give a competitive advantage to foreign tech players. She wants to legislate blanket rules that apply to everyone.

Feinstein says she is a no. Also says that some federal government agencies have concerns about it.

Klobuchar asks Feinstein what federal government agencies are concerned. Feinstein demurs. Klobuchar says she doesn't believe that is true.

Durbin is trying to get people to offer amendments instead of making statements. But so far no luck.

Back to Lee, who acknowledges that his witness in December endorsed the bill, but says they should have held a separate legislative hearing on the bill.

Sen. Hawley (R-Mo.) up now, supporting the bill. "These monopoly platforms are using their power to throttle competition." He says the points Feinstein raised, that it targets the 4 companies, is a virtue not a problem.

Sen. Blumenthal (D-Conn.) calls the bill a "historic imperative." "We need this bill." Consumers don't know that they are not giving them the cheapest products but one that will give the tech companies the most money, he says.

Sen. Tillis (R-N.C.) says he won't offer his 40+ amdts, but a long speech. The bill overreaches, he says. It needs more clarity, who is covered, what it permits and how it is enforced.

Tillis: "Our laws need to be clear. It's not clear how existing competition jurisprudence would be impacted by the bill. ...What standard will our enforcers look to?"

Sen. Coons (D-Del.) says he is working on a bill that would require the platforms to make data available to researchers. “This is any area where we HAVE to make progress legislatively”

But Coons says he has "significant concerns" about the bill, though will vote for it today. "I am not yet persuaded the legislation would improve the state of play" and has concerns about privacy, security and competitiveness.

(That makes 10 in favor, 3 opposed. They need two more to get out of committee)

Sen. Cornyn (R-Texas) says the bill needs a hearing. He has concerns about national security and cybersecurity. He plans to offer some amendments.

Sen. Padilla (D-Calif.) says he has questions and concerns, though he acknowledges there are "significant competition issues facing the tech industry." “I am not yet convinced that this bill as currently drafted will present the net benefit to consumers we are seeking”

Padilla: “Is this committee choosing to trust regulators and courts to crack down on harmful self-preferencing practices while allowing activity that is benefiting consumers? We should approach in a more measured manner.”

No's so far:
Lee (R)
Feinstein (D-Calif.)
Tillis (R)
Cornyn (R)
Padilla (D-Calif.)

Sen. Cruz (R-Texas) says he spoke to Apple CEO Tim Cook for 40 mins yesterday. Cook said the bill would erect obstacles to Apple's new privacy features like opt-out on tracking

Cruz says he doesn't think the legislation would do that. He has two amendments 1) to expedite these cases and 2) a private right of action that would allow companies hurt by the platforms to bring suit.

Cruz: "The abuses of Big Tech are such that I am happy to unleash the trial lawyers." Cruz has also a third amendment that would allow qui tam-esque cases: private litigants bring cases on behalf of the gov

Cruz says he won't offer them today because Klobuchar and Grassley have said they would be amenable to incorporate them. Cruz says he will vote for the bill today but his vote on the floor will depend on whether these changes are made.

Sen. Cotton (R-Ark.) says he is concerned about the discretion given to the FTC "liberal bureaucrats"; required data-sharing between U.S. companies and Chinese ones; and that it could catch up a lot of other firms, like Publix, Home Depot or Visa.

He will vote against the bill today (Also I feel compelled to note that the largest company in Cotton's state is Walmart, which he didn't name-drop but is really the one most concerned about there)

Sen. Blackburn (R-Tenn.) says she also drafted some amendments but also believes the legislation needs a full hearing. One of her amendments deals with data portability.

Sen. John Kennedy (R-La.) calls the Big Tech companies "countries, not companies" who are "killing fields for the truth" and "their business practices need to be looked at." The bill "is a start."

And that gets us to our 12:
Durbin (D)
Klobuchar (D)
Grassley (R)
Graham (R)
Hawley (R)
Blumenthal (D)
Leahy (D)
Whitehouse (D)
Hirono (D)
Coons (D)
Cruz (R)
Kennedy (R)

Kennedy proposes they have a lengthy hearing on the bill after they vote it out.

And now finally we get to amendments. Cornyn (R-Texas) offers an amendment on national security.

Cornyn says his amendment would provide protection to "keep American’s data out of the People’s Republic of China" and prevent companies who represent national security risks from having access.

Cornyn says his amend would prevent data on covered platform from being transferred to China or other foreign adversaries; and redefines the companies would could get access to the data.

Klobuchar (D-Minn.) says she will oppose the Cornyn amdt and will instead offer a second-degree amendment to the manager's. Cornyn's is overly broad and won't provide clear guidance, she says.

Klo says the manager's amdt makes clear it doesn't apply to companies or people subject to sanctions, export regimes or identified as national security risks. They reviewed that language with DOJ, she says.

The Klo-Grassley 2nd amdt will clarify that only covers data transfers to People's Republic of China, other business adversaries or companies controlled by China.

Cornyn says the protections proposed by Klo and Grassley "simply will not work."

Second-degree amdt to Cornyn amndt adopted by roll call 13-9

Cornyn amdt, as amended, adopted 22-0

Lee (R-Utah) amendment now. It would retain definition of covered platform and make clear a court shall presume the covered platform has monopoly power for the purposes of establishing liability in a Sherman Act case.

Lee also has a second amdt on the affirmative defenses in the bill. He says right now they are "hollow" because the companies would have to prove a negative. Removes phrase "narrowly tailored" and "non-prextual"

Sen. Ossoff (D-Ga.) offers a second degree amdt to Lee's amendment to toughen the standard that companies must meet to invoke the affirmative defense. He would propose retaining "non-pretextual" when discussing privacy or cybersecurity

Lee says he is not in favor of keeping "non-pretextual" because it's not consistent with the way the legal system generally works. It should be the gov burden, Lee says, to show the affirmative defense is pretextual.

Klobuchar says she is not in favor of the amendments because it would upset the balance struck on allowing companies to offer defenses.

Ossoff secondary amendment to Lee amdt fails 3-19

Lee amdt fails 10-12

Lee offers another amendment that would strike section 3(d) of the bill which deals with the covered platform designation.

Lee says it would retain the authority the DOJ and FTC to deal with the platforms under the bill but get rid of the designation point.

Klobuchar says this process (that Lee's amendment proposed to delete) would allow a company to know whether they are a covered platform or not.

Lee motion to strike section 3(d) fails 6-16

Cornyn amendment that was adopted earlier now available here: dropbox.com/s/845uzegsge01…

Cornyn is offering another amendment to ensure the requirements of bill don't lead to exploitation of cybersecurity. Klobuchar said she is opposed because it would create an overly broad carve-out for the companies to withhold data.

This Cornyn amendment fails 11-11

Blackburn now offering an amendment. Would insert the word "substantial" before the word evidence in the section of when DOJ and FTC finding should be given deference.

Klobuchar says she is opposed because it would increase the burden on the agencies

Blackburn amendment fails

And on final passage, 16-6.

Had to check with the committee because it was very hard to track but our six no's came from:
Mike Lee
John Cornyn
Ben Sasse
Tom Cotton
Thom Tillis
Marsha Blackburn

Both California senators -- Dianne Feinstein and Alex Padilla -- voted to move it out of committee even though they made comments that they oppose the bill. Grassley, Graham, Cruz, Hawley, and Kennedy were GOP in support with all 11 Dems.