Biden Tech Policy Preview

Joe Biden has been declared the president-elect (I’m pretty sure). Here’s what a Biden administration and a (presumably) divided Congress might mean for tech issues.

Net Neutrality

It’s likely that a Biden Federal Communications Commission (FCC) and his new chairperson will seek a restoration of the net neutrality regulations originally instituted in 2015 under the Obama administration and then repealed in 2018 under the Trump administration. That means a flip back to classifying broadband as a Title II telecommunications service and increasing the FCC’s regulatory authority over the industry. Because the net neutrality issue was such a political flashpoint for democrats, they’ll still pursue this reversal despite the increased private investments in broadband since the repeal.

Much of the superior performance of U.S. networks during the COVID quarantine, as compared to Europe’s, which operates under a utility-style regulation framework, can be attributed to this boost in private investment. This improving performance will continue to be demanded by Americans working and learning from home during the ongoing COVID pandemic and highlights the challenges for those without access to high speed broadband. This could encourage more government spending on rural broadband infrastructure to close the so-called “digital divide.”

Section 230

The current FCC is under orders to reinterpret Section 230 in an effort to reduce the amount on content social media platforms remove or make it more difficult to access or share. This project will likely be abandoned by a Biden FCC as the effort to reform or dismantle Section 230 probably moves to Congress.

But Biden himself has expressed enthusiasm for gutting or repealing Section 230. He told The New York Times that Section 230 “should be immediately be revoked.” But his criticism of platforms is a counterpoint to Republican objections of too much material being taken down. Instead, he criticized the protections Section 230 affords platforms for, “propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy.”

How a divided Congress legislates to change or repeal Section 230 while the two parties themselves are divided on what’s objectionable about the statute remains to be seen.

Antitrust

Big tech will continue to be an antitrust target. Biden has signaled his support for more strict antitrust oversight; there are already investigations at the Federal Trade Commission (FTC), most notably into Facebook, and a case filed against Google by the Department of Justice. Those investigations are likely to continue, but extreme expansion of antitrust rules is unlikely at a still Republican majority FTC and with many career lawyers at DOJ having expressed concerns about the strength of their case against Google upon filing.

Movement on expanding antitrust laws on Capitol Hill is much less likely if Mitch McConnell remains Senate leader. This fall the Democratic-controlled House released a partisan report calling for enlarging the scope of U.S. antitrust law, but those recommendations are unlikely to pass a Republican Senate.

Privacy

During his campaign, Biden signaled he’d prefer more government regulation of privacy. But online privacy is an issue Congress will have to act on to create new regulations. There are still wide gaps between Republicans and Democrats on the Hill over state preemption (if the World Wide Wweb isn’t interstate commerce, what is?) and private rights of action (a gift to the plaintiffs’ bar). Once again, a divided Congress, still divided on the details of reform, leaves any action in doubt.

But, of course, if 2020 has taught us anything, it’s that you can never be sure of what the future brings. Stay tuned!