What The Election Means For Tech

If Trump Wins…

For Republicans, bashing Big Tech has become as central to the Culture War as bashing the Big Three Networks once was. Demanding neutrality from social media companies has become what net neutrality has been for Democrats: the issue that sucks up all the oxygen in the room except far more politically useful.

ISPs arent in the content moderation business, but social media woul

d be unusable without it. (Just try using 8Kun or Gab!) Democrats have always struggled to identify real-world examples of net neutrality violations, but Republicans find anti-conservative bias everywhere, everyday. Content moderation at the scale of billions of posts is wildly imperfect, so anyone can find examples of decisions that seem unfair. But Republicans wont settle for mere neutrality. They want to end Section 230s legal protections for moderating hate speech, misinformation, using fake accounts to game algorithms, and most foreign election interference. All of these tend to benefit Republicans, so moderating them seems to prove the claim that Big Tech is out to get conservatives.

This wont just be empty rhetoric anymore. Making every tech issue about bias will make most tech legislation impossible, but Trump wont really need new legislation. Hell finally weaponize the two independent agencies that regulate tech: the Federal Communications Commission and the Federal Trade Commission. Their current chairmen are traditional Republicans and serious lawyers uninterested in playing political games. But in August, Trump abruptly withdrew the renomination of Republican stalwart Mike ORielly after he obliquely criticized Trumps Executive Order demanding political neutrality of social media. Trump quickly nominated the junior administration staffer behind the White Houses crackdown. No one should doubt that the next FCC and FTC chairmen will be Trump loyalists unencumbered by legal or constitutional scruples and eager to turn the screws on Trumps enemies. Each agency will become ever more a political battleground in which “tech” issues serve as proxy war for deeper cultural conflict.

If Biden Wins…

Trump called Sleepy Joe a tool of the radical, socialist left. Biden insisted his primary victory was a mandate for centrist pragmatism. Perhaps nowhere will Bidens leadership be tested more than in tech policy.

Congress hasnt passed substantial tech legislation since 1996 and even that overhaul of the Communications Act (of 1934!) mostly reflected pre-Internet assumptions and fears. Congress used to make regular course-corrections through biennial reauthorization of federal agencies but stopped in 1998, the year Congress became pure political spectacle. The FCC and FTC have since been left to improvise. The FCCs long been a junior varsity Congress same political baggage, no electoral accountability. The more serious FTC is trending that way. Each change of the White House means increasingly large shifts in tech policy.

These problems are as thorny as our broken judicial nomination process and equally unlikely to be corrected through our broken legislative process. If Biden wants to be remembered for resolving them, hell need to do for tech what hes proposed for the courts: convene an expert bipartisan commission with a clear mandate to develop once-in-a-century legislation, and then get er done.

Bidens nominations for FCC and FTC Chairs will reveal whether hes genuinely interested in leading on tech or content, like Trump and Obama, to exploit tech issues to excite his base. Strong Chairs in Bidens mold could build Congressional consensus for significant, but viable, and therefore moderate, legislation. But if he picks bomb-throwers over problem-solvers, well have four more years of the same digital culture wars and creating a stable digital-era regulatory framework may have to wait several more presidencies.

Section 230

If Trump Wins…

Republican fulmination about anti-conservative bias will continue to escalate. Dont expect Republicans to pass any legislation. But theyve always been more interested in stoking resentment among their base and using threats of legal action to coerce large tech companies to change their content moderation practices in ways that help Republicans.

The FCC will proceed with a rulemaking to sharply limit Section 230s protections. The only question is whether Ajit Pai issues a more restrained proposal on transparency mandates before he leaves the FCC. If not, Brendan Carr (or whoever Trump might appoint to replace Pai) could propose most or all of what NTIA has asked for. This dynamic will make it difficult for bipartisan legislation to pass amending 230, but something like the EARN IT Act and other amendments targeted at unlawful content might pass.

If Biden Wins

Many Republicans will blame Big Tech for their losses, and claim that election interference (by Big Tech) delegitimized the new administration. Theyll do everything they can to deter content moderation beyond narrow categories of porn, dirty words, illegal content, promoting terrorism, self harm, and harassment (narrowly defined). Most Democrats want exactly the opposite: to coerce tech companies into moderating misinformation as a condition of maintaining their 230 protections. There simply is no common ground here.

So unless Democrats win enough Senate seats to abolish the filibuster, the debate over content moderation wont be resolved anytime soon. Instead, Democrats will focus on liability for third-party content that isnt moderated which is what nearly all 230 cases are actually about. The EARN IT Act already has bipartisan support, as does making 230 protection contingent on removing unlawful content, and requiring websites to prove that their practices are reasonable. Each is deeply problematic, but practical details of real-world implementation dont seem to matter much.

Biden has said he wants to “revoke” Section 230 “immediately,” but there’s little reason to expect repeal to happen. Instead, expect him to focus on “hold[ing] social media companies accountable for knowingly platforming falsehoods,” as a Biden spokesman put it after Trump’s Executive Order in May.

Here, more than in any other area, an expert commission is the only way out of this debate. The issue is simply too complicated — both legally and technically — for Congress to handle.

Net Neutrality

If Trump Wins…

Status quo: The FCC will maintain its hands-off approach to broadband regulation and net neutrality legislation will remain stalled in Congress. At most, a Democratic House and Senate might pass legislation purporting to revive the 2015 Open Internet Order, but Trump would veto it and its far from clear thats even a valid way to legislate. Instead, expect activists to focus on pushing for state-level broadband legislation. The courts are unlikely to allow that so long as the FCC retains broad preemption. But for some activists, the point has always been to keep the fight going forever, not to actually win in court.

If Biden Wins

Even a centrist FCC Chair would face overwhelming activist pressure to revive the FCCs 2015 Open Internet Order. But will they want to be remembered merely for playing yet another round of Title II ping-pong or for finally convincing Congress to resolve this issue? Theres been a bipartisan consensus on the core of net neutrality since Republican Chairman Michael Powell gave his Four Freedoms speech in 2004. Democratic Chairman Genachowski pushed hard for legislation. He resorted to issuing the 2010 Open Order only after Republicans pulled out of legislative talks, calculating that theyd have more leverage after the midterms.

Resolving this issue could be the key to broader telecom reforms that Congress has been unable to tackle since passing the 1996 Telecom Act a law based on markedly pre-digital assumptions about the future. Democrats should be careful not to overplay their hand: the D.C. Circuit decision upholding the FCCs 2015 Order made clear that the FCCs rules only applied to companies that held themselves out as offering unedited services anyway, meaning that ISPs could opt-out of Title II if they really wanted to.

Tech Antitrust

If Trump Wins…

Expect more antitrust lawsuits like the Google suit. But if the Google suit is the strongest case this Administration has, theyre unlikely to win any significant remedies in court. And even if those suits do succeed, theyre unlikely to significantly address Republicans real concerns about bias. So dont expect Republicans current litigate but dont legislate approach to last long. Trump is famous for turning on a dime, and Congressional Republicans will face enormous pressure, especially if Democrats take the Senate, to strengthen the antitrust laws. Ken Bucks minority report indicates where populist Republicans might find common ground with anti-corporate populists on the left.

If Biden Wins

Theres enormous political pressure from all quarters to do something about antitrust. But dont assume that legislation will be anywhere near as radical as what Congressional Democrats have proposed. Even Rep. David Cicillines much-hyped proposal to turn antitrust law on its head is careful to note that it represents only the views of his staff not the Committee or its members.

Its one thing for Democrats to talk about flipping the burden of proof in merger cases, but giving the government such leverage would have, for example, made it easy for Trump to force ATT to spin off CNN or to make editorial changes as implicit conditions of the Time Warner deal. Democrats pushing such ideas simply havent thought through the implications of what theyre proposing. Do they really want to make it easier for Republicans to use the antitrust laws as political weapons against the media, both new and old? A more considered, serious approach from the administration would focus on increased funding, more aggressive enforcement, and carefully targeted statutory changes.

Federal Privacy Legislation

If Trump Wins

Status quo: Absent a court decision striking down state privacy laws on dormant commerce grounds hard cases to win, which usually take years Republicans will continue to insist on national privacy legislation to prevent every state from layering its own set of data rules on top of Californias. But Democrats have little political incentive to negotiate for any legislation that would displace Californias approach, which they claim as a win despite its glaring amateurishness and many practical pitfalls.

If Biden Wins

If Democrats also take the Senate, theyll have no excuse for not finally passing the comprehensive baseline privacy legislation theyve talked about for years. Preemption should be an easier give for Democrats if they have more leverage in writing the legislation and are assured of handling at least the crucial first 3-4 years of enforcing the new law. Passing a federal law, even if it overlaps significantly with Californias, would allow the Administration to take credit for addressing the top complaint about Big Tech: not bigness per se, but a perceived lack of control over data collection.

Treatment of Chinese Tech Companies

If Trump Wins

Status quo: The White House will raise legitimate concerns about Chinese tech companies giving the Chinese government access to private user data and influence over content moderation decisions. Theyll hype deals like TikToks partnership with Oracle, but Chinese entities will retain control. The only real winners will be American companies favored by the White House. Itll be cronyist mercantilism veiled in talk of privacy and free speech. Republicans will increasingly find themselves in a quandary: the greatest beneficiaries of their push to hamstring American Big Tech companies will be Chinese companies that have achieved the scale necessary to expand into the U.S. market, as TikTok has done.

If Biden Wins

Republicans will hammer the Biden Administration for any perceived weakness on China especially when it comes to tech. Expect the White House to try to depoliticize CFIUS and treat the review process as more of a law enforcement exercise than policymaking driven by the White House. If Democrats are smart, theyll try to insulate themselves from inevitable Republican attacks by drawing clearer statutory lines about foreign ownership of tech companies serving the U.S. market. The real test will come the first time CFIUS declines to take action against a Chinese company: will the White House intervene under political pressure?

And If the Election is Contested…?

If theres no clear, quick election result, the stage will be set for the mother of all battles over online speech. If Trump and his supporters claim victory and insist that ballots that changed the result on election night must be fraudulent, Big Tech companies will apply warning labels to such content and block paid ads making the same claims. Republicans will go absolutely ballistic. Theyll throw every legal theory they can against the wall. Dont expect any of it to stick: website operators have a clear First Amendment right to reject, or put disclaimers around, third party content just as newspapers do with letters to the editor. But that wont stop Republicans from filing multiple lawsuits and complaints with federal regulators, including the Federal Election Commission. Expect the Trump administration to get creative in finding ways to stick it to tech companies in interregnum.

As ugly and politicized as tech policy is today, if tech policy becomes wrapped up in a Florida recount but worse fight, well quickly come to look back at todays tech policy battles as mild by comparison.

Author: Berin Szoka

Date: 2020-11-03

URL: https://www.techdirt.com/articles/20201103/10371945642/what-election-means-tech.shtml

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