Most political obsessives trying to guess who President-elect Joe Biden might pick to be in his Cabinet are focused on the flashy positions: secretary of state, secretary of defense, attorney general. Then there are us nerds, who are keen to find out who will be the new chair of the Federal Communications Commission.
President Trump loves to talk and tweet about his feelings on tech, though his agenda wasn’t exactly clear and consistent. But tech policy is increasingly important in our everyday lives, especially as the pandemic has made us rely more heavily on our devices and internet connections.
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Biden will have to navigate Trump’s legacy while charting his own course. Here’s how Trump has influenced five key tech policy areas and what Biden might do about them.
One of Trump’s first acts as president was to appoint Ajit Pai chair of the FCC, and less than a year later, Pai completed a goal he had long pursued: repealing the commission’s net neutrality protections. These rules were enacted by the FCC during Barack Obama’s presidency and dictated that internet service providers treat all types of communications equally, prohibiting them from blocking or throttling some services while prioritizing others. But now telecom companies can do what they like.
Since the net neutrality rules were repealed, providers have taken a number of steps that would have violated the old rules. AT&T, for example, doesn’t count streaming HBO Max toward its customers’ data limits — AT&T owns the streaming platform after its merger with Time Warner — but it does count other, competing streaming services that eat up data.
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“That’s clear self-preferencing,” said Chris Lewis, the president of the consumer advocacy group Public Knowledge and a net neutrality proponent. “This is problematic, and it’s one of the reasons we wanted to have net neutrality rules.”
Pai has announced he’s stepping down in January, just in time for Biden to appoint a new chair. Depending who he picks and what kind of guidance comes out of the White House, it’s possible for a new Democrat-majority FCC to resurrect net neutrality. Biden has tapped Mignon Clyburn, a former FCC commissioner and a net neutrality advocate, for his transition team, and her name has been tossed around as a potential FCC chair as well.
But Biden might be better off trying a new approach, rather than simply resurrecting the old, rejected rules, according to Jesse Blumenthal, who leads tech and innovation policy for Stand Together, a group funded by the libertarian Koch family.
“If you appoint a really activist FCC chair, they will immediately start the regulatory rulemaking process, and then the second the rule is passed, they’ll get sued,” Blumenthal said, which could lead to the rules getting thrown out again. “If you actually care about the underlying policy here, you would be going to Congress and updating the Telecom Act instead of this pingpong.”
Trump’s interest in tech antitrust rules — legislation that could keep big tech from becoming too big — has been scattershot, but Democrats and Republicans have both expressed concern about the concentration of power in a few tech companies. In October, after a 16-month investigation, the House released a Democrat-led report on monopolies in tech that said digital powerhouses like Google, Facebook and Amazon wielded too much power and needed to be restructured. A few weeks later, the Department of Justice and 11 Republican state attorneys general filed an antitrust lawsuit against Google, claiming the search engine company used anticompetitive practices. And the Federal Trade Commission is currently preparing a possible antitrust suit against Facebook.
Biden has expressed an interest in dealing with big tech, but hasn’t specified exactly what that will look like. Instead, he and his campaign have made broad statements about how big tech companies have “abused their power” and “evaded any form of responsibility,” as campaign spokesperson Matt Hill told The New York Times. “That ends with a President Biden,” he said.
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But exactly how the crackdown will occur and what form it will take depends on the resolution of a philosophical divide among Democrats, according to Derek Bambauer, an internet law professor at the University of Arizona.
“The conventional wing is one where antitrust is a blunt instrument to be used only as a matter of last resort, and where you really need a strong, empirical showing of consumer harm,” Bambauer said. “The other wing is what I call ‘hipster antitrust.’” To that group, he said, big is bad, regardless of what big does.
If Biden leans toward the former camp, action against big tech would likely take the form of investigations and more scrutiny of certain acquisitions, Bambauer said, while if he holds the more progressive view, he’d probably push for much more aggressive government intervention and the introduction of new regulations to limit big tech’s power.
China’s tech influence
Trump has cast suspicion on Chinese technology companies, in particular the threat they might pose to American users’ privacy.
Trump’s recent attacks on the popular video app TikTok, which is owned by a Chinese company, were most notable. They included a threat to ban the app in the U.S. if the company didn’t sell off its American assets to another company, citing concerns about the app leaking private data to the Chinese government. Yet strangely, when the deadline for the TikTok sale came around, Trump was no longer pursuing it.
But this was only the latest example of Trump’s ongoing tech war with China. Throughout his tenure, he has tried to limit U.S. spending on Chinese technology, including by banning domestic telecom companies from using equipment from Huawei and ZTE, two massive Chinese telecommunications firms, and by signing a law providing $1 billion for companies to replace their existing Chinese-manufactured equipment. He has also banned U.S. investment in companies that are owned or controlled by Chinese military, and he moved to block the connection of a high-capacity U.S.-China undersea internet cable.
“I think this was a proxy for larger international political issues the Trump administration has with China and an opportunity for the Trump administration to flex,” said Christopher Ali, a media studies professor at the University of Virginia. “But these are serious and important questions regarding the ownership of apps and communication platforms. Is this a conversation we need to have? Perhaps. But this can’t be a conversation only about TikTok.”
Threatening to ban an app whose main function is to document teens performing choreographed dance routines may seem frivolous, but many people, including Biden, share the overarching concerns about China and tech users’ privacy. But Biden’s approach will likely be different than Trump’s, focusing on strengthening domestic tech industries while building a diplomatic consensus with allies in Europe to help limit China’s influence.
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I am not the only one who’s been pulling my hair out over the attention Section 230 has attracted from politicians in recent years, since they so often seem to have no idea what it is. It’s best to read the law yourself, but in short, Section 230 is a few lines in the Communications Decency Act that prevent website owners from being held responsible for what other people post on their sites. As Bambauer put it, it’s the reason that if someone says something defamatory about him on Twitter, “I can sue that person, but I can’t sue Twitter.”
Section 230 is a funky little rule that encourages sites to both moderate what is posted and avoid being overly censorious. Before the law was passed, courts had found sites that did some moderation liable for the third-party content they chose to leave up. Since Section 230 protects sites from this liability, they’re free to moderate without worrying about what they let stand. But it also protects users from overmoderation for the same reason: If a website were liable for the posts of its users, it stands to reason that the site might be a lot more strict about what content it allows.
Trump has claimed the law enables tech companies to censor conservative voices online and has sought to repeal Section 230 in various ways. In the spring, for example, he signed an executive order that weakened the law, while Republicans have introduced legislation to repeal or rework it. On Thanksgiving, Trump tweeted that Section 230 should be “immediately terminated,” and a defense spending bill reportedly might be used as a vehicle for passing language to repeal Section 230.
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Biden too has called for a repeal of Section 230. His complaint is not that companies do too much moderation, though, but that they don’t do enough, citing social media’s limited response to disinformation as the main problem. But according to Lewis, “A full repeal of Section 230 would be a huge blow to free expression online. If President-elect Biden’s goal is to increase moderation, then repealing Section 230 will not accomplish that or, at worst, it will increase moderation to the point that it is oppressive.”
Lewis said Section 230 could be reformed without harming free expression, such as by more clearly defining some of the law’s vague or ambiguous language, but without any actual details or plans from the Biden transition team, it’s hard to say if that’s what is being pursued.
“It is the foundational law enabling the development of the internet and it’s facilitated decades of economic growth, innovation, freedom of expression and global leadership,” said Tiffany Moore, the senior vice president of political and industry affairs for the Consumer Technology Association. “Both sides have their concerns about Section 230, but we need a thoughtful, substantive conversation about Section 230, and ultimately that resides in Congress.”
This year’s pandemic threw the country’s digital divide into sharp relief. With so many people staying home and relying on the internet to work, attend school, visit with their doctor, order food and stay in contact with loved ones, it became obvious how vital internet access is.
Yet millions of Americans lack access to the internet, or at least lack access to high-speed internet. The FCC estimates 21 million Americans can’t get broadband internet where they live, but these figures are based on self-reported numbers from ISPs, and the agency itself has deemed them inaccurate enough to hold off on doling out funding until the figures can be verified.
Trump’s FCC has made efforts to close the digital divide — such as through the Connect America Fund, which was started during the Obama era and provides subsidies to companies willing to build internet infrastructure in underserved areas. But advocates working to reduce the digital divide say the FCC hasn’t made much progress under Trump.
“The requirements placed upon big telco to do these connections were so subpar that really it allowed them to do what they were going to do anyway and pocket all these billions of dollars,” Ali said.
Trump’s administration has also been quiet on the other barrier in the digital divide: cost. Many Americans who live in areas with access to high speed internet can’t afford it.
A goal to “expand broadband access to every American” was included in Biden’s campaign platform, though exactly what the plan is has yet to be revealed. But continuing to stay the course is unlikely to solve the problem, according to Lewis, and the pandemic has made it harder to ignore.
“Urban, rural people are being left out from connectivity to broadband, and it is essential for their lives,” Lewis said. “We can’t just throw money at the problem. There needs to be oversight, authority and an agency to deal with the causes of digital divide that don’t have to do with money.”