Don’t expect Joe Biden to go any easier on Big Tech than President Donald Trump has.
That’s the view many Washington policy experts are taking to the prospect of a Biden presidency. It highlights how, despite some enormous differences from Trump in terms of style and policy, there may be more continuity between the two administrations than you might think.
Biden may not fire off as many incendiary tweets as Trump. But, policy analysts say, Biden’s approach to large tech platforms is driven by the bipartisan outcry over Silicon Valley’s dominance — and reflects how dramatically the political environment has changed for the industry since 2016. Where once companies such as Facebook and Google were welcomed as innovators who could help government run better, they now face accusations of monopoly power and abetting the spread of misinformation. That’s led to repeat congressional hearings, investigations and even lawsuits, with some policymakers urging new regulations to rein them in.
Legal challenges to Big Tech
Under President Biden, tech titans including Google (GOOG) and Facebook (FB) will continue to face the risk of litigation and regulation, said Paul Gallant, a tech and telecom industry analyst at Cowen & Co.
With many anticipating a divided Congress, he said, expect much of the action to come out of administrative agencies and the courts.
“The tech risk in Washington has always come more from the agencies than from Congress,” he said. “The Federal Trade Commission, Department of Justice and the Federal Communications Commission. That’s the same today.”
On the heels of a House Democratic report this fall highlighting the market power and alleged abuses of Amazon (AMZN), Apple (AAPL), Facebook and Google, Gallant added, it’s fair to expect that antitrust officials “will be deeply investigating all four major tech companies under Biden.”
Biden administration lawyers will likely have a major role in carrying out any near-term litigation against the companies. Google is already battling a landmark DOJ antitrust suit filed by the Trump administration. Meanwhile, FTC officials continue to investigate Facebook for potential antitrust violations. Major events like these tend to take years to play out, meaning they’re expected to outlast the Trump administration — and be picked up under Biden.
Biden won’t be directly involved, as investigations and antitrust enforcement are supposed to take place free from White House influence. But who he nominates to lead the FTC, DOJ and other agencies will set the tone and could have important ripple effects for the tech industry.
The importance of agency leadership is most apparent with the FCC, which under Republicans is targeting a key legal shield for Silicon Valley known as Section 230 of the Communications Act of 1934. Section 230 is the federal law that gives websites and social media companies legal immunity for many of their content moderation decisions, and it has come under attack by Trump and his allies for providing legal cover for alleged anti-conservative censorship. The FCC currently plans to initiate a proceeding to “clarify” interpretations of the law.
Section 230 has its detractors among Democrats, too, and as a White House candidate, Biden said its protections should be revoked. Tech platforms, Biden said, should be liable for spreading misinformation or content they know to be untrue.
But given how the FCC’s sitting Democrats have already objected to the Section 230 proceeding as politically motivated and potentially unconstitutional, experts say, it’s more likely for Biden to approach Congress for a solution on Section 230. Several proposals have already been introduced, and a vigorous, if sometimes fruitless, debate has played out there over the law’s shortcomings.
Telecom and broadband
A push for so-called net neutrality is also likely to make a return under a Democrat-controlled FCC, said Gallant. This policy seeks to ban internet providers from blocking or slowing down websites. For years, Democrats and Republicans have battled over rules for internet providers, with GOP commissioners most recently rolling back regulations implemented in 2015. Expect Democrats to try to restore those rules, Gallant said.
Perhaps an easier win that can be accomplished early in Biden’s presidency will be expanding high-speed internet access nationwide, experts said, a priority Biden has championed and that various groups and lawmakers have endorsed as a tool for the country’s economic recovery.
“Our hope is that a stimulus package will include digital infrastructure investment,” said Jason Oxman, president of the Information Technology Industry Council, a technology trade group. “There is bipartisan support on Capitol Hill for a pandemic response and economic stimulus response that ensures all Americans have access to broadband at a time when everyone needs it.”
Experts also said that with California having affirmed its state privacy law in a ballot measure this month, pressure will mount in Congress to pass a data privacy bill that could apply to the entire digital economy nationwide. Lawmakers have sought unsuccessfully for years to pass such legislation, but with tech regulation increasingly on the agenda, the next Congress has an opportunity to make it a reality.
Approaches toward China
Other areas where the Biden and Trump administrations generally overlap include the US policy toward Huawei and potentially TikTok, experts said. That’s because both political parties agree that China and Chinese-affiliated businesses could pose a cybersecurity risk, even if, according to cybersecurity experts, the threat remains hypothetical for now.
Tom Wheeler, a former FCC chairman under President Barack Obama, said the US government had concluded early on that companies like Huawei could pose a spying threat, and persuaded major US wireless carriers not to purchase Chinese hardware for their own networks.
“Trump made a lot of noise about Huawei, but the Huawei whistle had been blown during the Obama administration,” Wheeler said, indicating that the Biden administration’s stance would likely reflect a continuation of a years-long trend.
Meanwhile Trump has all but forced TikTok into an unusual and complicated business deal with Oracle and Walmart in an effort to reduce the influence of TikTok’s current Chinese parent company, ByteDance. It’s unclear how this deal may be affected by a Biden administration, but experts say the underlying security concerns would likely be shared.
Where Trump and Biden diverge
Tech industry officials also perceive major points of departure between Biden and Trump. Companies that depend on immigrant workers anticipate that the Biden administration will reverse many of Trump’s immigration policies, such as the travel ban targeting Muslim-majority countries, restrictions on Deferred Action for Childhood Arrivals — an Obama-era policy allowing some undocumented immigrants who came as children to the US to remain in the country — and limitations on high-skilled immigrant work visas. The tech industry needs high-skilled visas, and companies such as Apple have taken public stands on DACA.
Tech companies that have made major climate change commitments also have high expectations that the Biden administration will rejoin the Paris climate agreement. On Monday, IBM (IBM) sent a letter to Biden calling on his future administration to take those steps.
“Those are certainly things that could be done under executive authority,” said Christopher Padilla, IBM’s vice president of government and regulatory affairs, in an interview.
Not a continuation of Obama’s agenda
Biden shares close ties to Silicon Valley. Former Google CEO Eric Schmidt emerged as a top Biden fundraiser this election cycle, and Cynthia Hogan, a longtime Biden aide, went to work for the campaign this year after leaving a senior position at Apple. On Saturday, as news networks called the race for Biden and Sen. Kamala Harris, Facebook COO Sheryl Sandberg wrote that it was a “big step” toward creating a more diverse government and a “remarkable achievement” by Harris, whom she said was “shattering glass ceilings and norms around what leadership looks like.”
In many ways, Biden’s presidency could seem like a replay of the Obama administration, which was marked by numerous officials rotating between Washington and Silicon Valley, frequent White House visits by tech leaders, and even the direct involvement of tech company engineers who were called in to fix the botched launch of Healthcare.gov.
Trump has sought to project coziness with Silicon Valley leaders, including by inviting them to serve on economic recovery panels. But he has also spent much time criticizing tech companies for their alleged left-leaning bias, accusing them of censoring conservative viewpoints, a charge that’s led to friction and targeted regulatory efforts like the kind under consideration at the FCC regarding Section 230.
Policy analysts also say much has changed in four years. Both the US government and the public are more skeptical of Big Tech, and that’s going to change the tenor of the Biden administration.
“I don’t think this will be Obama Part II,” said Gallant.