Silicon Valley businesses will be able to re-establish old connections within the Biden-Harris government. Civil society organisations are warning that Big Tech will have too much influence in the political discourse. But there will be no return to the Obama era – from competition law to data protection, the sector will have to expect tougher rules.
Should Mark Zuckerberg be afraid of Joe Biden? The future US President is famously no friend of Facebook. During his election campaign, Biden fell victim to disinformation campaigns on social media and as a candidate, called for platforms to be held responsible for false or misleading content. His view of the matter accords with that of his top technology adviser, Bruce Reed, a tech-critic who was involved in the negotiations for the California Consumer Privacy Act, the most stringent data protection act in the United States. But that is not all the Facebook CEO has to worry about. Under a Biden administration, he is also at risk of a stricter application of competition law .
There will be no return to the tech-friendly policy of Barack Obama as long as his former Vice President occupies the White House, that much is clear. “Declaring war on Big Tech is now a mainstream Democratic policy”, report the tech correspondents of the news service Axios.
But things could have been worse for the sector. Unlike Elizabeth Warren or Bernie Sanders, for instance, Biden did not make the concept of the “Tech-Lash” (the public backlash against the tech industry) a major issue in the Democratic primaries.
Technology is relevant to all policy areas
Biden is more or less an unknown quantity in tech policy – but the topic weaves itself through almost all policy areas, from defeating the coronavirus pandemic to the fight against climate change. Reducing the digital divide between urban and rural areas will be a priority, as will rolling out the 5G networks and reinstating the rules on net neutrality shelved by the Trump administration, which will subject Internet providers to similar prohibitions to those governing telephone companies, preventing them from blocking traffic to competitors’ websites or charging for their services.
Achieving a strong tech sector is in the national interests of the United States. The new administration may therefore go all out to maintain the technological edge of its own businesses over China – for which it will need to search out allies in Europe. Relations with the EU will not be entirely unproblematic in this area – from questions of taxing the digital giants to misgivings over the latest European mammoth regulation initiative for Internet companies, the draft European Digital Services Act, which was published on 15 December 2020.
In spite of all this, Biden is dependent on the expertise and relationships of the Obama era. His transition team list read like a “Who’s Who” of the tech sector, for instance featuring Jessica Hertz, former head of Facebook’s legal department. (Update: Jessica Hertz has since been appointed to the position of Biden’s staff secretary in the White House.) Amazon’s International Tax Director, Tom Sullivan, was on the team preparing for the handover in the State Department (Update: He is currently vetting State Department appointments.) and managers from Airbnb, Lyft and Uber have spots in other government departments. Furthermore, Biden’s most senior consultants include Cynthia Hogan, one-time senior lobbyist with Apple, and former Google CEO Eric Schmidt. Within the White House, Louisa Terrell will head up the office of legislative affairs. She previously held senior positions with McKinsey, Facebook and Yahoo.
High density of tech in Biden’s inner circle
Previous governmental experience may well have tipped the balance in favour of some of these appointments. Terrell previously worked in the White House under Obama and for Biden in the Senate. In an open letter, a group of 32 citizens’ rights organisations have expressed concern at the high density of tech in Biden’s inner circle. “We can only bring these companies to account if you do not rely on affiliates of these very companies to make up your government”, reads the letter, whose signatories include Public Citizen, the American Economic Liberties Project and the Open Markets Institute.
As regards access, the Biden-Harris government is a stroke of luck for the companies. Facebook is reported to be positioning itself for a massive charm offensive, in which Biden’s good relations with former British Deputy Prime Minister Sir Nick Clegg, now the company’s vice-president of global affairs, will be key. The tech giants may also have the future Vice President Kamala Harris in their sights, as she will be bringing her own Silicon Valley connections from her time as District Attorney in San Francisco with her to the White House.
Yet the sector is under no illusions that there is any question of a return to the golden age of Obama, however favourable its connections to the White House. For instance, Biden’s future advisers also include Sarah Miller and Gene Kimmelman, whom he worked with under Obama and who are now campaigning for tech monopolies to be broken up.
Straight off the bat, the Biden government will inherit the now historic case against Google over its alleged exploitation of its monopoly on the search engines market, which was filed by the Department of Justice in October. Following the resignation of Attorney General William Barr, it is uncertain whether a second planned lawsuit against Google’s market leadership in the online ad sector can be squeezed in before the change of power in the White House. The government’s Federal Trade Commission (FTC) and the Attorneys General of 48 US states and territories filed lawsuits against Facebook’s market consolidation in early December, potentially forcing the sale of the Instagram and WhatsApp services, which Facebook acquired in 2012 and 2014 respectively.
Competition law, data protection and rules for ethical AI
In Congress, too, there is bipartisan appetite for a crackdown on Internet giants – even above and beyond competition law. Ethical debates, for instance over the use of artificial intelligence (AI) for facial recognition, will occupy both the courts and Congress in 2021. The US is under enormous pressure to sign off the debate that has ground to a halt in Congress on a national data protection law – not simply to protect US consumers, but also to win back the trust of America’s European allies in cross-border data flows. In July 2020, the European Court of Justice ruled the Privacy Shield agreement unlawful (the decision centred on concerns over the monitoring of foreign citizens by the US secret services).
The debate on the future of Section 230 of the Communications Decency Act, which protects Internet platforms from being held accountable for content or for moderating content, is likely to be even more complicated. The paragraph is a thorn in the side to Democrats and Republicans alike, but for different reasons. While Democrats are calling for platforms to take greater responsibility for incorrect or harmful content, Republicans are pushing for the platforms to censor conservative content, on the pretext of limiting disinformation.
The Biden government could therefore go so far as to overturn an Executive Order of the Trump administration cancelling the provision. However, the debate on disinformation has become so politicised following the disputed election result that a balanced reform of Section 230 is unlikely to happen any time soon. On the subject of platform regulation, the US could be overtaken once again by the EU, which is now forging ahead in the fight against disinformation and monopolies. Two years after the General Data Protection Regulation (GDPR) went into force, the draft Digital Services Act and Digital Markets Act (released in December) is the EU’s next attempt to set global digital governance standards.
A German version of this article was first published on 17 December 2020 on boell.de.