9 min read.Updated: 19 Dec 2020, 06:04 PM ISTChristopher Mims, The Wall Street Journal
The incoming administration faces decisions about which Trump-era policies to continue and fresh challenges of its own
President-elect Joe Biden’s transition team describes its animating philosophy as “build back better." It’s both a nod to the Trump administration’s penchant for paring back the power of federal agencies and a way to frame Biden’s preference for big, New Deal-style stimulus.
But what does it mean for the U.S. tech industry and its would-be regulators, in an age when open hostility to Big Tech has become a bipartisan affair? Here are five areas likely to affect nearly all Americans, tech topics the incoming administration and its advisers have indicated will take precedence.
Section 230: Little law, big reach
Section 230 of the 1996 Communications Decency Act is the legal principle that makes today’s internet possible—from Facebook, Twitter and TikTok to YouTube, Discord and Twitch. It protects companies from being held liable for what their users do online.
This made sense when online services were little more than tools for creating virtual billboards and mailing lists, but many of today’s platforms have evolved to include powerful artificial-intelligence algorithms that determine what shows up in people’s feeds. Critics on both sides of the political aisle say if companies control what people see, they should be responsible for what people see—and don’t see.
President Trump threatened to veto a recent defense-spending bill unless a provision to strike down Section 230 was included. Last December, Mr. Biden declared that Section 230 should be “revoked, immediately."
That doesn’t mean they’re in agreement. Jessica Melugin, director of the Center for Technology and Innovation at the libertarian Competitive Enterprise Institute, notes that Republicans believe Section 230 provides cover for social-media companies to censor political speech, while Democrats want to change Section 230 so that social-media companies are liable for dissemination of misinformation. (My colleagues created an illuminating explainer on this.)
Despite all the heated rhetoric about eliminating Section 230, Congress does not appear to have the will to pass laws that would change it, says Ms. Melugin. If it were to act, we would likely see a compromise that narrows the scope of Section 230’s protections, as recently proposed by a trio of Republican senators.
Alex Engler, a fellow at the Brookings Institution—which describes itself as nonpartisan but has been labeled centrist or moderate—studies the impact of tech on governance. He says the Biden administration might find bipartisan support for rules that would slow the spread of certain content on social media, and adding warnings to things that quickly go viral—often an indication they’re untrue. Twitter experimented with such measures in October, in an attempt to slow down election-related misinformation.
The Federal Communications Commission was asked by the Trump administration to reinterpret Section 230, but other scholars at Brookings believe any changes to how the law works will have to come from Congress, not the FCC, and Ms. Melugin agrees.
Net neutrality: The fight over internet competition
Net neutrality—the principle that every bit of data should be treated equally, in terms of how fast it’s delivered, by the internet’s physical infrastructure—has long been held sacred by internet pioneers, activists and Big Tech companies like Google and Facebook, who argue it’s essential to nurturing innovation and maintaining competition. Without it, they say, U.S. internet service providers, many of which are effectively local monopolies, could privilege their own services while charging more to carry competing services.
For example, AT&T, which provides internet to millions of American homes, could offer its HBO Max service at a reduced rate, while charging competitors Netflix and Disney+ a fee to reach those same homes. AT&T mobile already exempts HBO Max from customer data caps, a process called zero-rating.
In 2017, the Republican-controlled FCC, under outgoing chairman Ajit Pai, rolled back Obama-era net-neutrality rules, arguing they led to less choice for consumers and, in some cases, higher prices. Critics of the FCC under Mr. Pai insist that his actions accomplished exactly the opposite of what he intended.
ISPs have long argued they’d never degrade their offerings by throttling the speed of competitors’ services. But advocates of net neutrality say that changes made by broadband and wireless providers since the 2017 rollback of net neutrality, such as zero-rating and charging consumers for exceeding data caps, are evidence that America’s ISPs were emboldened by the Trump era.
What happens to net neutrality at the FCC also bears on bridging the digital divide. Mr. Pai made expanding broadband access in rural areas one of the FCC’s priorities, and touted the end of net neutrality as a return to free-market principles that would lower the cost of broadband. The fact that America’s broadband network has held up under the increased strain placed on it by so many Americans living their lives online during the pandemic is evidence that these policies worked, says Ms. Melugin.
Any action by the Biden administration to restore net neutrality, which could include an end to zero rating and possible scrutiny of fees ISPs charge providers like Netflix and YouTube to distribute their content, is likely to be delayed well past inauguration day. The FCC currently has only four commissioners, split evenly on party lines. If Republicans retain control of the Senate, Mr. Biden’s nominee for the fifth slot could be held up for months. Such a delay could paralyze FCC rule making, policy analysts at New Street Research wrote this month, and jeopardize bipartisan agenda items such as freeing up spectrum for wireless networks.
AI-powered algorithms affect ever more areas of our life, from who gets a job or a home to who stays in prison and who receives lifesaving medical care.
“It’s easier than most people think for AI to violate existing laws that are there for our protection, like civil-rights protection, or laws about fair housing," says Meredith Broussard, a New York University professor, data scientist and advocate for auditing these algorithms.
Regulating AI received almost no federal attention under the Trump administration, and it’s not clear what the Biden administration has planned, since recognition of its increasingly widespread impact in our daily lives is still nascent.
Should Congress or regulatory agencies turn their attention to policing existing and near-term uses of AI, there are models for how it can be handled which have been pioneered at the state level, says Ms. Broussard. Decades of laws and rule making already make discriminatory or harmful actions by businesses and governments illegal. In some cases, regulators could apply existing rules to the algorithms those entities use. In 2019, for example, the New York state attorney general issued a note saying life-insurance discrimination laws also apply to algorithms. These are the sorts of things federal agencies could do on their own, without an act of Congress.
China: Picking up where Trump left off
President Trump surfaced long-running tensions in the trade relationship between China and the U.S., especially in tech. By confirming Chinese leaders’ suspicions that the U.S. government’s goal is to contain China’s economic and military power, the Trump administration has accelerated trends that were already in motion, says Elsa Kania, an adjunct research fellow at the Center for a New American Security.
With the start of the Biden administration, she adds, “there is a tendency to want to believe that we’re turning a page or we’re starting over, but I think the impact of the past four years on the U.S.-China relationship going forward may be much more enduring."
By banning the export of American-made high-tech manufacturing technology to China, the Trump administration has effectively ended the ability of Chinese telecom giant Huawei to compete internationally in the production of advanced smartphones, and is also making it difficult for it to compete in the rollout of 5G. The ban was also just expanded to include SMIC, China’s largest manufacturer of microchips.
Given China’s long history of protectionism and intellectual-property theft, widely recognized by both Republicans and Democrats, there’s little evidence the Biden administration is eager to diverge much from Mr. Trump’s policies. And China will likely continue on its current path no matter who is in power.
“China sees itself in perhaps a rather desperate struggle to achieve autonomy in technological development," says Ms. Kania. While China is struggling to replace now-inaccessible American technology, its government is spending billions to make sure such dependence won’t be a problem in the future.
The matter is different for Chinese social apps like TikTok and WeChat, says Ms. Kania. The Trump administration seems to have lost interest in forcing TikTok’s parent company to sell its U.S. business, and a federal judge in October blocked Mr. Trump’s attempt to ban WeChat, citing insufficient evidence that it’s a security threat. Pursuing either would require energy and political capital the Biden administration will likely prefer to spend elsewhere.
It’s also possible that government research-and-development spending—the wellspring of countless fundamental innovations later commercialized by American businesses—will benefit from the increased tension with China, says James Pethokoukis, an economic-policy analyst and fellow at the American Enterprise Institute, which is officially nonpartisan but often described as politically conservative.
Things the Biden administration should be prioritizing anyway—such as dealing with climate change, making the U.S. the most attractive destination for highly skilled immigrants and making tax breaks for R&D permanent—could be an easier sell to the public and Congress if framed as part of a global competition with China, he adds.
The Obama legacy
Some tech-related agencies and policies that were begun under the Obama administration remained essentially untouched during the Trump administration, says Mr. Engler of Brookings. For example, the recent rollout of private 5G wireless networks to increase competition in rural areas was made possible by Obama FCC rules that freed up wireless spectrum.
The U.S. Digital Service, created in 2014 with a mission to improve federal websites and the technology required to deliver federal services, has lately played an important role in the federal government’s response to the coronavirus. By naming it in its Agency Review Teams plan, the incoming Biden team signaled that USDS will continue to be a priority.
The Obama administration was characterized by much sunnier relations between Big Tech and the U.S. government than the last four years of the Trump administration. And many now helping Mr. Biden and his vice president—California senator and former attorney general Kamala Harris—have tech backgrounds. Some are still employed by America’s top tech companies, including Alphabet, Salesforce, Facebook, Airbnb, Stripe and the Silicon Valley venture-capital firm Sequoia.
“The fact that there are technologists on the transition teams means that the whole process of rebuilding the government includes technology from the start," says Mr. Engler.
But the Obama era was a time before Cambridge Analytica and other data breaches, misinformation and outcries over “fake news," growing concerns about tech companies evading taxes and shipping manufacturing jobs overseas. It was before the dawn of trillion-dollar tech companies and widespread concerns about their monopolistic practices. Mr. Biden takes over at a time when the public increasingly demands accountability from the companies that dominate their lives.
Even though Mr. Biden and his team might want to get tough on Big Tech in some areas, it may be difficult to do so when at the same time they’ll need to work closely with these companies to modernize government and “build back better."
This story has been published from a wire agency feed without modifications to the text.
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