Analysis: Biden to take a tough stance on Big Tech policy

Many of Big Tech’s expected future regulatory challenges are a result of their own making – as in the case of Facebook, Google, and Amazon.

These companies are being charged by some countries with monopolistic tendencies, prompting some of the regulators in states to send warnings to these firms so they can get their act together.

The role of social media on influencing the extraordinary storming of the U.S. Capitol building and tech’s subsequent last-minute efforts to curb disinformation and hate speech has put Big Tech under the spotlight.

Among other unprecedented moves were Facebook, Twitter, and YouTube that banned outgoing U.S. President Donald Trump from their platforms because of the danger his postings represented to public safety.

Clearly a line had been crossed within the sanctity of free speech, putting Trump in essentially the same pitch as terrorists and child pornographers who are banned with zero tolerance from using any social media.

 Trump’s tweets were deemed as repeatedly trafficking in disinformation about the U.S. election that evolved into statements that inherently inspired widespread violence.

With the suspension of the former president and various fellow travelers from Twitter and Facebook, the amount of misinformation has dropped markedly. However, it is important to note the calamity of Trump’s exodus has narrowly slipped by U.S. regulations of archiving presidential tweets and postings on various other platforms under the Freedom of Information Act

Also, Facebook and Twitter have eliminated thousands of accounts related to the QAnon conspiracy theory, which wove a dark series of claims about the “DeepState” and child-kidnapping world leadership and expunged the earlier exploding “#StopTheSteal” movement – which claimed massive vote fraud without a shred of evidence.

These moves at cleaning house by Big Tech are first time such action in the political space and illustrate the change of mood and perception from the social media policies in the last few years. This has sparked a worldwide debate over technological jurisdictions on what and whom social media can police on a global stage – especially that countries are leaning towards localizing data extracted from their respective citizens, as Turkey has previously done.

On the U.S. front, Biden will take a much more specific stance on reigning in tech than his predecessor Trump, who only complained about those aspects of that affected him politically, — i.e., Section 230 – which for years has acted as a liability shield for tech separating what is posted on or through these Big Tech services from the services themselves.

Newly sworn-in Biden has promised to get tougher on this particular aspect of Big Tech, such as Facebook for allowing rampant disinformation and has said he will back efforts to repeal of Section 230, which has long served to protect the industry in often controversial cases.

Promulgated more than 20 years ago as part of the Communications Decency Act, Section 230 is a mere 26 words long, but has had a huge impact in protection of Big Tech from liability.

This small codicil was included to allow leeway on freedom of speech, put tech services on similar footing with the U.S. Postal Service, which comparably, is not responsible for the letters people write.

The section opened Pandora’s Box in that tech did not self-police the other side of the issue – the posting of hate speech, disinformation, or inflammatory posting designed to cause violence.

Section 230 reads as follows:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Former President Barack Obama continued to endorse this and other “freedom of speech” policies, along with tax rules and financial incentives embraced by the-then younger tech industry in hopes of fostering growth.

From the Obama administration viewpoint this was for purposes of encouraging innovation to a still maturing sector.

Now 12 years later, following Obama’s double term and Trump’s one, forecasts are that Biden will change course on Section 230.

This expected move is not only because the industry has matured, but additionally to all but the most laissez-faire observer, Facebook, Google, Twitter, and comparable services have grown to encompass much modern communications, encompassing a large spectrum of posting and their often-malignant result.

“The era of permission-less innovation is over,” said Darrell West, a senior fellow at the Brookings Institution who studies tech policy in an interview with U.S. public radio, NPR. “There’s going to be more public engagement, more public oversight and public regulation of the technology sector.”

“Biden will be tougher on the tech sector than Obama was because the party has moved to the left on tech policy,” he said, including the reform of Section 230 known as techs liability shield.

This section of the Communications Decency Act – which at the time, absolved various companies of primary responsibility for what was posted through their services – gave an apt cover from lawsuits, but ultimately is facing stiff and growing opposition from the GOP, Democrats, and European governments, albeit for very different ideological reasons.

As the new administration was sworn in on Jan. 20, the world can set its watches on the speed of change that will take place by regulators and by the tech industry itself, on this and other key regulatory issues.

While Biden is seeking to revoke Section 230 in the near term, he has neither called for immediate cancelation, nor has the upcoming administration proposed comprehensive replacement for the law.

U.S. vs Google

For monopolistic Big Tech, the potential regulatory snowball has started rolling downhill already and will only increases under the Biden administration.

Just days before the Nov. 3 general elections, the U.S. Justice Department filed an anti-trust lawsuit against Google. This legal action against the search giant is to date the federal governments largest such anti-trust gambit but follows closely in similar actions that have been under way in the European Union.

Should such a case prove successful – no doubt after long litigation – Google would find itself spinning off sections of its sprawling business holdings.

A similar case has been also launched charging Facebook with antitrust violations.

As it stands, Democrats in Congress support such anti-trust legal action including Rep. David Cicilline, (D.) Rhode Island, who supervised a 15-month investigation into the monopoly power of Big Tech.

Biden is expected to separate himself from Trump on some particulars of these cases, but not end anti-trust legal actions or legislative action outright.

Venture capitalist and political consultant Bradley Tusk noted in recent media comments that “it’s pretty easy to see that Trump and Attorney General [William] Barr wanted to move it forward quickly before the election,” Tusk said. “I can see a Biden administration saying, ‘Look, we don’t think these decisions were made for the right reasons, we’re going to review this whole thing on our own.’”

However, the overall bipartisan support for toughening regulation stems, in large part, from a dramatic shift in public sentiment on this issue.

The impact of social media on both the 2016 and 2020 elections has led American citizens to increasingly see misinformation, data and information privacy, and excessive market power as serious public policy concerns — concerns that many feels should be addressed by Washington.

In fact, according to a recent a Consumer Reports survey, roughly three in four Americans “worry about the power wielded by today’s biggest tech platforms.”

This issue has also globally spilled over to other countries, as the EU uncovered a set of new regulations for Big Tech, sending a message to leading tech companies to either work with governments or faces the consequences, including large fines and strict regulatory regimes.

Information and Data Privacy

Fears have been growing that tech companies know too much about us.

Tech policy watchers in the US have increasingly focused on a national online privacy law, perhaps similar to the regulations that went into effect in 2017 in Europe. And comparable to California’s tough new data privacy law considered the new aspirational standard for other states in the U.S.

For several years, the international community has been nearly outraged with tech companies gathering personal data in increasingly Orwellian ways.

“I think there’s a very good chance there will be a national privacy law in 2021, mainly because the tech companies want it,” one commentator said. “Their worst-case scenario is having to comply with 50 different sets of state rules, which is a nightmare from their (tech’s) standpoint.”

As COVID-19 has drastically moved work, school, and socializing online, the need for data privacy protections has gained new urgency, experts note.

In a move that counters some of these concerns, the WhatsApp messaging system recently changed its privacy rules with the introduction of a mandatory policy for business users allowing the company to keep a record of persons contacted and groups formed, along with e-commerce orders which are part of WhatsApp Business.

The initially announced policy caused widespread public confusion as it was largely interpreted that the usage policy applied to individual users. The first policy rollout required marked clarification and a delay of the expected launch date by three months into spring of 2021.

The policy entailed Facebook’s ability collect users’ data from the instant messaging app such as their phone number, email address, contacts, location, device ID, user ID, advertising data, purchase history, battery information, product interaction, payment info, crash, performance, and other diagnostic data, customer support, and metadata.

The controversy over the update grew far and wide, with the company publishing statement after statement to clear the confusion and tidal wave of disinformation which claimed that the social media giant would be able to read people’s chats and messages.

Even Instagram’s head Adam Mosseri – which is a subsidiary of Facebook – attempted to clear up the clutter online through various statements.

But all this has fallen on deaf ears.

This sudden flare up and confusion against the social media giant and all its subsidiaries could be attributed to a deeply rooted problem of trust, or lack thereof.

Facebook has a notorious track record when it comes to digital privacy, to the extent of which its CEO Mark Zuckerberg has frequently testified in front of the U.S. Congress and the EU Parliament on that matter.

For many, this outcry against Facebook and WhatsApp could be considered the scapegoat for putting Big Tech under the microscope to address their rising power over the people and their drastic fall from trust by international Net users who number in the billions.

Relations with China’s will be complex and cautious

To some, Trump’s public spat with China-based TikTok showed the former president singling out a Chinese-owned technology company that has been used to lampoon him, citing national security concerns.

To others, the scrutiny of the popular video-sharing app reflects a growing wariness in Washington about China’s overall involvement in the tech industry — a sentiment shared by members of both political parties.

Biden’s approach to China on tech and on trade is expected to be firm and cautious though a general improvement of bilateral relations is expected after the bellicose years of the Trump administration.

Those worries are expected to extend to companies such as Huawei, a major international provider in telecoms equipment that the Trump administration has targeted in a crackdown amid the fight for control over the next generation of wireless technology known as 5G.

“Aggressiveness towards China in terms of trade secrets, China tech companies, potential spying and other issues, I don’t think that’s going to change much,” commenter Bradley Tusk added.

H-1B visas for High-Tech Immigrants

Silicon Valley, and other top tech hubs in the U.S., have for over a decade relied on specialized H-1B visas for tech-skilled immigrant workers.

According to statistics, such expert foreign-born workers comprise a large percentage of industry specialized labor, representing over 60 percent of workers in engineering, mathematics, and computer advanced experts that make up the high-tech industry.

Under the now-former administration, overall immigration crackdown, the number of H-1B workers was diminished. Efforts to try and eliminate the visa category by Trump was blocked by a federal judge.

Biden, during the campaign and in recent statements, has a promised to change this and other immigration rules in the near term, a move hailed by Big Tech.

Yet Biden’s precise plan to overhaul the visa system for high-skilled, foreign-born workers remains unclear and may still nudge companies to hire American workers, according to the policy positions on his presidential campaign website.

FCC

Republican chairman of the U.S. Federal Communications Commission, Ajit Patel, handed in his resignation along with GOP commissioner Mike O’Reilly on Jan. 20, which would hand Democratic Party a voting majority of 3-2, expected to impact a number of issues.

Beyond the above discussed Section 230, the question of Net Neutrality will arise amid the huge surge in online usage during the pandemic. Highly expected is that Biden’s FCC will reverse a 2018 order which reclassified broadband providers to Title I services repealing the Obama era’s neutrality rule which restricted charging for higher usage and data caps.

Instead, broadband would be reclassified as Title II services, and additionally, the FCC would prohibit data caps, zero rating and interconnection fees with a new Net Neutrality ruling.

The two Democratic incumbent Commissioners, Jessica Rosenworcel and Geoffrey Stark, are likely nominees to the FCC chief position, though assorted other names have floated.

Also under focus, particularly given the pandemic’s moving of most education online, is the issue of the digital divide, with more than 16 million U.S. students lacking access to the Net.

The particulars of improving internet connectivity for students, rural residents, and low-income Americans remain to be announced – though emphasis would no doubt be put on the E-Rate program which brings broadband access to schools and libraries, and the Lifeline program which helps subsidize low-income citizens, to decrease the digital divide.

America’s blocking of Huawei 5G equipment is expected to remain given the ongoing bipartisan support for this restriction. Thus far, under the 2020 FCC there has been five large spectrum auctions for the 5G space with bidders including telecom giant AT&T and Verizon. The FCC auction netted a record breaking $80 billion, and additional spectrum remains to be auction for satellite 5G players.

Expect 2021’s FCC to be the center of debate as the new administration focuses on a variety of key ICT issues that will shape how Big Tech’s approach to data might be, and how other countries and regulatory bodies will follow suit.

With wires and think tank reports.
Senior Correspondent Yehia El Amine contributed to this analysis.