Welcome back for another week of What's Next, where we report on the intersection of law and technology. Here's what we've got for you today:

>> A glimpse into what the internet might look like if the DOJ gets its way.

>> Tech employment lawyers exhale after seeing Trump's proclamation regarding foreign workers.

>> Why LGBTQ law associations are not resting after the SCOTUS ruling.

Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

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Announcing Two Incredible Keynote Speakers for the Women, Influence & Power in Law Conference

WIPL is known for having some of the most engaging and energizing keynote speakers attend to share their thoughts, experiences, war stories and tips on effective leadership. And this year is no exception. This year, we are grateful to welcome two remarkable women come and inspire us: Tina Tchen, the President and CEO of the "Times Up" Legal Defense Fund and Paula Boggs, Founder of Boggs Media LLC and Former Executive Vice President, General Counsel and Secretary, Law and Corporate Affairs at Starbucks from 2002-2012. READ MORE

Paven Malhotra, Keker & Van Nest partner (Photo: Jason Doiy/The Recorder)

The Latest Shots Fired at Section 230

The Department of Justice and Senate Republicans are backing up President Donald Trump's pledge to stomp out tech companies' "selective censorship" and poke holes in Section 230 of the Communications Decency Act.

Last week, DOJ provided several proposals to reform the legislation, and Sen. Josh Hawley (R-Missouri) introduced a bill that would "empower Americans to sue Big Tech companies who act in bad faith by selectively censoring political speech and hiding content created by their competitors," according to a news release.

The recommendations pack some punches regarding antitrust activity and encryption.

Keker, Van Nest & Peters partner Paven Malhotra said he doesn't expect Congress to push through any CDA reforms this legislative session, given it's an election year. Republicans and Democrats are eager to amend the law, but they have different motivations and visions that may make it difficult for that to happen in the future, he said.

Malhotra pointed to a "very problematic provision" in the DOJ proposals that said Section 230 immunity should not apply to providers that design or operate their services in ways that intentionally impair the ability to identify criminal activity.

"That's pretty troublesome, because that's pretty much a backdoor attack on encrypted communication," he said.

Main Justice also called for clarification that Section 230 does not shield companies from federal antitrust claims. Malhotra said the only time he's seen the CDA invoked in antitrust cases is when an antivirus provider or spamware company is targeting a competitor's product.

Richard Lawson of Gardner Brewer Martinez-Monfort said this comprehensive examination of Section 230 is a direct consequence of DOJ wrestling with legal arguments that if Congress didn't want tech companies to get so big, they would never have made CDA the standard.

"The Department of Justice has been leading a lot of these antitrust inquiries, and I think it's no mistake that it's the Department of Justice that's rolling up its sleeves on these legal issues that has now proposed these four amendments."

Both Lawson and Malhotra agree that passing the DOJ's reforms could edge out smaller competitors.

But Lawson, who served the Florida attorney general as the director of the Consumer Protection Division, said he would be surprised if the reforms allow private parties to sue.

Malhotra said that if the proposals do move forward, tech companies will likely limit content rather than take on additional legal risk.

"If these proposals are put into place, it could significantly weaken the ability of platforms to defend themselves in the future, because CDA 230 has been a very important tool for platforms to be able to operate their businesses, permit content and do that without incurring punitive legal exposure," he said.

No New Visas for Big Tech

The tech industry might have to go without new temporary work visas through the end of the year after President Donald Trump's latest proclamation regarding foreign workers, but Kelli Duehning of Berry Appleman & Leiden in San Francisco said many employment lawyers were bracing for much worse.

"We were surprised by the sheer fact that it didn't have more teeth to it," Duehning said.

The proclamation doesn't appear to apply to any employees who are already in the U.S. and have a valid visa. It also does not pose restrictions for Optional Practical Training work authorization or J1 student visas. "I have a feeling the administration did not realize that they left that open," she said.

But Duehning said if businesses are relying on overseas talent, they are going to be affected by this order.

"If you're a company who is hoping to bring intracompany transferees into the U.S. or new H-1Bs into the U.S., it's going to hit your bottom line," she said.

During the pandemic, Duehning has seen an uptick of mergers and acquisitions due to the economic climate. However, companies that merge or acquire foreign entities are not going to be able to bring staff into the U.S. to train workers, she said.

A White House fact sheet on the proclamation also promises that, under Trump's direction, the administration will shift away from the H-1B lottery system to "prioritize those workers who are offered the highest wage, ensuring that the highest-skilled applicants are admitted."

But the order itself only directs the secretary of Homeland Security "to take other appropriate action regarding the efficient allocation of visas."

Duehning said that the fact sheet seems to hint that the administration is considering implementing a rulemaking process to strengthen the H-1B rule. Nothing has been submitted to the U.S. Office of Management and Budget yet, she said. It's possible that the administration submits an interim final rule or temporary rule, but "I can't imagine anything like that passing without immediate litigation ensuing," she said.

Stonewalling the Future of Law

Last week, the U.S. Supreme Court found that employers could not fire workers solely on the basis of their sexual orientation or gender identity. Yes, I'm a little late on this one, but I would argue that so is a ruling to this effect, so at least I'm on theme. Besides, this week (beginning June 28) commermates the 51st anniversary of the Stonewall Riots, where trans women of color led an uprising after the New York City Police Department violently raided the Stonewall Inn. And now, in 2020, protestors are continuing to hit the streets to call for an end to deadly and discriminatory policing. Sometimes, the future of law feels like a blast from the past. But unlike in 1969, law enforcement has access to drones.

Here's what two LGBTQ law associations in California had to say about the ruling.

The Bay Area Lawyers for Individual Freedom:

The Bay Area Lawyers for Individual Freedom said they anticipate the decision will have a broad and far-reaching impact on federal and state laws that mirror the language of Title VII.

"Justice Alito in his dissent lists 173 federal statutes that are likely to be impacted by today's ruling. We hope he is right," the group said in an email statement.

"Significantly, the rights the LGBTQI+ community won today stem from the same sentence of the statute that protects Americans from discrimination on the basis of race. As an LGBTQI+ bar association, we are committed to achieving equality and dignity under the law knowing we cannot succeed without affirming the rights of anyone who is discriminated against on the basis of race, color, religion, and/or national origin too.

"LGBTQI+ Americans have long lived with the fear we may lose our jobs, be denied opportunities, be denied healthcare, or even lose our lives. Many Americans still face such fears simply because of who they are. Black and African-Americans in particular continue to face much of the same oppression and violence that the Civil Rights Act was intended to guard against. We must therefore dismantle systemic racism at the same time we advocate for our rights as LGBTQI+ individuals."

Tom Homann LGBT Law Association in San Diego:

"LGBTQIA+ people have long-awaited confirmation at the federal level that the Constitution protects them from employment discrimination and that we are owed the same decency and rights as others. We cannot overstate the significance of the court's long overdue decision upholding the rights and opportunities of LGBTQIA+ people in the workplace. We are elated to witness this historic moment for the LGBTQIA+ community."

But the organization said there's still much work to be done in both LGBTQIA and minority communities.

"We cannot achieve full equality until all of our communities are free from discrimination, injustice and racism. With today's decision we are inspired and re-invigorated to continue the fight for equality, from gaining equal access to healthcare to ending systemic discrimination and violence against our most vulnerable communities."

I hope that everyone is surrounded by love, safety and acceptance this month and always. Happy Pride!

IMDb. Photo: Piotr Swat/Shutterstock.com

On the Radar

9th Circuit Sides With IMDb Finding California Law Barring Disclosure of User Ages Unconstitutional "Here, the state has not explored, or even considered, a less restrictive means to combat age discrimination in the entertainment industry before resorting to the drastic step of restricting speech," wrote Ninth Circuit Judge Bridget Bade. "Unlawful age discrimination has no place in the entertainment industry, or any other industry. But not all statutory means of ending such discrimination are constitutional." Read more from Ross Todd here.

In $117.5M Yahoo Data Breach Settlement, Judge Koh Has More Questions "I want the total number of billers, by firm, all in one document, and by position," said U.S. District Judge Lucy Koh of the Northern District of California, mentioning specifically project attorneys, staff attorneys, contract attorneys, law clerks and anyone else paid by the hour. "I'm not going to award any attorney fees until I get it." Read more from Amanda Bronstad here.

Black In-House Lawyers Should Be Added to More Corporate Boards "Our management team, Board and employee base must have greater diversity. I am ashamed to say I do not have a single black employee who is at Director level or above," 23andMe CEO and co-founder Anne Wojcicki wrote in the company's "Black Lives Matter" statement. "Our product is euro-centric but must expand to be inclusive and equitable. We absolutely have the potential to be better. Despite our efforts, I have to honestly say that we are also part of the problem." Read more from Kibkabe Araya here.

Thanks for reading. We will be back next week with more What's Next. Stay safe and healthy, everyone