Failed insurrection aside, Biden is going to be president in two weeks. What does it mean for tech policy?

We may finally get that privacy legislation, net neutrality


Comment Despite an extraordinary day in Washington DC where, under President Trump’s urging, insurrectionists stormed the Capitol and temporarily halted the approval of his replacement, Joe Biden is still going to become president of the United States on January 20.

Perhaps more critically in terms of legislation however, Wednesday also saw the all-but-certain elections of two Democratic Senators in the state of Georgia, displacing two Republicans and handing effective control of the Senate to the Democratic Party.

That means that the same party controls both halves of Congress, albeit by very small margins, as well as the presidency, and that has huge legislative implications. It will become possible, in theory, for the Democratic Party to drive through policy decisions.

And many of the big issues of our time, outside the traditional concerns of health, welfare, housing and so on – revolve around tech. So what does a Biden Administration with both houses of Congress (for two years, at least) look like from a tech perspective?

The Biden tech philosophy

Somewhat unfortunately, given how desperately the laws of the US needs to be changed to fit with the internet era, the 78-year-old Biden is not exactly a tech policy buff. In fact, his position on a wide range of tech issues is not known in large part because he doesn’t have one.

That could cut both ways: it means Biden’s tech approach will be driven by his advisors and, hopefully, the most tech savvy in Congress rather his own personal views. Biden just named David Recordon as the new White House Director of Technology, which is a promising start given Recordon’s credentials as an open-source developer.

At the same time, though Biden’s general lack of interest in tech means it may not be a policy priority for the new president, and so efforts could be dropped if other issues closer to his heart require additional focus.

However, there will, inevitably be some big-button topics that will come up and may even be resolved – and that can’t come soon enough for most of them.

Data privacy

This is likely to be the one big piece of legislation that goes through. Pretty much everyone is agreed, on both sides of the aisle, in business, and in civil society, that new privacy legislation is needed.

Aside from the fact that the transatlantic US-EU data sharing agreement, the Privacy Shield, has been deemed illegal, there is the fact that California has created its own privacy law – since strengthened by voters – and in the internet era no one wants to have to deal with dozens of different state laws for different people’s data. The push for new privacy legislation has been going on for years but has failed again and again thanks to both political differences and to lobbyists for companies that benefit most from America’s weak laws.

Many of those barriers will now be surmountable if push comes to shove – which it will. The big battle will likely be between more progressive Democrats who will want a European-style GDPR law and those who listen to business interests more. In the end, everyone should be able to agree that having a privacy law is better than not having one.

Likelihood of happening: High

Net neutrality

Net neutrality is almost certain to come back yet again with a Democratic president and hence a Democratic FCC majority. This is going to be yet another almighty fight as one side pushes for the reinstallation of net neutrality principles and the other side does everything in its power to disrupt that.

What is most likely to happen is that a Biden FCC will revert back to the previous rules. The big cable companies will bitterly oppose such rules, so will the Republican FCC commissioners and Republican congressmen.

They will have to be yet another public comment period which will, yet again, be swamped by comments – most of them fake – and then new rules will be passed just in case for the next administration to tear it all apart again.

Here’s what really needs to happen: Congress needs to take this issue on itself and update telecommunications law for the internet era. It should create new laws specifically for the world we live in, rather than keeping trying to jam policy into outdated laws from the 1930s or 1990s (depending on what aspect you’re looking at.)

This is a tall order of course but it is WHAT CONGRESS IS THERE FOR. Without Republicans able to block progress just because, it is feasible that an actual, useful law could be passed that accounts for Republican views and puts the US on a good legal footing for the next 20-30 years.

Likelihood of happening: Low

Section 230

This of course refers to the legal protections for online platforms that means they are, in large part, not legally responsible for user content.

This has been a hot button topic this year, thanks in large part of stoking by President Trump who was furious at Facebook and Twitter putting warning labels on his false posts. Thankfully that pressure campaign ultimately failed and so we have avoided ill-thought-out changes from being pushed through. But the topic is undoubtedly coming back.

This issue is complicated by the fact that Joe Biden has expressed a strong view – that Section 230 should be scrapped altogether. Pretty much no-one agrees with that approach but it does mean that the first barrier will be to get past the president’s current viewpoint.

Despite Trump’s effort to decide this issue through the FCC, the reality is that any change is going to need fresh legislation. And there is no shortage of it, most of it proposed by Republicans who decided to equate Section 230 protections with a claimed censorship of conservative voices.

The best solution would be to throw out everything that has come forward up to now and start afresh with the new president, or with the Department of Commerce, or possibly Congress, convening some expert voices about what the issues are, and how they could be effectively dealt with through new law.

If Congress actually decides to do a good job, it may not need to touch Section 230 at all and instead tackle the real issue – fake news, misinformation, and offensive content – in a separate piece of legislation tailored to reality.

Likelihood of happening: Medium

Antitrust action

From the tech companies’ perspective this is the big one: the US government and some states have already filed antitrust actions against Google and Facebook.

Notwithstanding the fact that those actions have been rushed and continue to rely on an outdated notion of what anticompetitive behavior looks like in the modern internet era, this is a process that will set the future path for the industry.

Done well, it could restore the US to a place of extraordinary innovation and widespread wealth creation, rather than what we have now which is a few giants that spend more of their time squashing competition and plumping up profits than pushing things forward.

Done badly, it would set the market in place and stifle a whole generation of businesses. The stakes could not be higher for the tech industry and the American economy overall.

What will the Biden Administration do different to the Trump Administration? It’s not clear. Most likely the main impact will be that the White House interferes less in the process, which is probably a good thing given the complexity of the topic. Biden is certainly no huge fan of the tech giants so he is unlikely to seek to kill or neuter the investigations.

Likelihood of happening: High

Other topics

There are a wide range of other issues that will crop up in the next four years, not least: 5G, spectrum management, internet governance, trade wars and digital taxes.

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The Trump Administration’s approach to each appeared to be driven by the nebulous “America First” concept, which meant that anything that was good for large established US companies or that Trump personally pushed for, even when inconsistent with other policies.

The Biden Administration is likely to be far more traditional and less interventionist. That said, Biden is also likely to take a firm line with China given his extensive foreign affairs experience, while seeking to defend smaller companies from the market control of larger ones.

From a pure policy perspective, a coherent philosophy is likely to emerge from the Biden Administration which will make it much easier to predict which way the legislature will go on such issues.

The big problem is that there doesn’t seem to be a philosophy in place yet and if it takes more than a year to develop one, the opportunity to fix things that need to be fixed may be lost by the time the next election cycle comes around. ®

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