What to Expect: How a Biden Administration Would Tackle Tech Policy

Joe Biden's position to win the US presidency has been gaining strength as "Election Week" continues. As we await final results from five battleground states, here’s a primer on what to expect from the most intensely debated tech policy issues in Washington should Biden win. Tech antitrust: Pressure to ‘do something’ Industry observers have told us they don’t expect a change-of-guard to upend the Google lawsuit brought by the Justice Department in concert with 11 state attorneys general over the company's search advertising hegemony. Indeed, we could see a spate of antitrust activity brought to bear on Big Tech during a Biden presidency. October was rife with Big Tech antitrust news. First, the House Judiciary Committee’s Antitrust Subcommittee, led by Democrats, released a damning report accusing Amazon, Apple, Facebook and Google of abusing their monopoly power. That move preceded the DOJ's long-awaited lawsuit against Google. “There’s enormous political pressure from all quarters to ‘do something’ about antitrust,” said Berin Szóka, senior fellow and founder at libertarian-leaning think tank TechFreedom. “But don’t assume that legislation will be anywhere near as radical as what Congressional Democrats have proposed.” For instance, Szóka said he believes a Biden administration would be unlikely to flip the burden of proof in merger cases; the standard rule that companies must prove their deal is competitive will remain in place. Instead, a Biden DOJ would likely focus on ensuring the department is better funded to maintain a more aggressive enforcement regimen while establishing “carefully targeted statutory changes” for antitrust. “Regardless of who wins the presidential election, antitrust enforcement against Big Tech will continue,” said Sally Hubbard, director of enforcement strategy at liberal think tank the Open Markets Institute. “If anti-monopoly candidates of either party gain Congressional seats, then the likelihood of robust legislative reforms, like those proposed in the House Judiciary Antitrust Subcommittee's Big Tech report, increases." Section 230: Holding social media companies to account If you’ve read about tech policy in 2020, you’ve heard a lot about Section 230 of the Communications Decency Act. The legislation affords some liability protections to internet companies that host user-generated content (think: Facebook and Twitter, but also The New York Times’ comments system). After Twitter placed fact-checking labels on his tweets, President Donald Trump signed an executive order reviewing the social media company's authority to interpret the Act, which the Commission is now considering. Biden has also called for repealing the current protections afforded by Section 230. Zhanna Malekos Smith, senior associate at the Center for Strategic and International Studies, said the industry should expect a Biden administration to push for new legislation “to hold social media companies accountable for knowingly using their platforms to distribute falsehoods.” Shane Tews, a visiting fellow at the conservative American Enterprise Institute who also chairs the board of TechFreedom, said that there’s a lot of talk about 230—including in recent congressional hearings—but not a lot of plausible solutions on the table. “There’s a lot of people that are screaming at each other,” she said. Net neutrality: Resurrection In 2017, the Republican-controlled FCC did away with Obama era net neutrality protections, which, among other things, prevent internet service providers from charging users or companies for better service. It seems likely that a new FCC under Biden would reinstate those rules. TechFreedom’s Szóka said that “even a centrist FCC chair would face overwhelming activist pressure to revive” net neutrality rules. Still, he wonders whether a Biden administration would push for legislative reform. Democratic Chairman [Julius] Genachowski pushed hard for legislation,” Szóka said, noting that the Commission rules were a backup choice after Republicans pulled out of legislative talks. Brent Skorup, a senior research fellow at the libertarian Mercatus Center, said that a Biden FCC may try to “resurrect” the rules, though he’s not certain, as “the public seems to have tired of this issue.” “Biden has moved on from yesterday's net neutrality battles and will seek a new Communications Act that addresses the booming communications sector,” said Alec Stapp, director of technology policy at the liberal Progressive Policy Institute. “His team recognizes that continuing to punt the regulatory football back and forth between the FCC and the FTC isn't the right long term solution.” A federal privacy law: One law to rule them all The pressure is on the US government to pass a federal privacy law and address a top issue in tech policy, especially since the EU’s General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA) passed since Donald Trump was first elected. The odds of a federal privacy law passing are highest under a Biden administration, Stapp said, assuming Democrats also have control of Congress. He anticipates that more states will adopt laws like California’s, increasing compliance costs for firms. California has freshly passed Proposition 24, which tackles how companies handle user data. Additionally, since the Schrems II decision in Europe invalidated the EU-U.S. Privacy Shield, there’s additional pressure to pass a federal law to “remedy some of the Europeans’ concerns,” he said. “Passing a federal law, even if it overlaps significantly with California’s, would allow the administration to take credit for addressing the top complaint about “Big Tech”: not bigness per se, but a perceived lack of control over data collection,” Szóka said. Treatment of Chinese tech: Tough talk? The Trump administration has targeted companies with perceived and real ties to China during his four years in office: Take the regulatory salvos against Huawei, ZTE, Broadcom, Grindr, and most recently, TikTok and WeChat. “Biden will take a similarly tough position on infrastructure companies like Huawei,” Stapp said, but is “less likely to come down hard on consumer apps like TikTok.” He expects Biden to talk tough on China, “but with fewer unilateral tariffs and more cooperation from international allies.” Tews has been critical of the Trump administration’s approach to China for not being a “thoroughly thought out foreign policy position.” But she also thinks that Biden will be softer on China: “I don’t think the Biden White House will be as confrontational, which will please the Chinese and its long game interest in world domination,” she said. But that viewpoint is open for debtate. Weifeng Zhong, senior research fellow at the libertarian Mercatus Center, said that the Trump administration “irreversibly changed” America’s economic relationship with China. “No matter who wins the election, a big challenge to the next president would be to tackle those security issues without compromising clear market rules and consistent enforcement in our economy,” he said.