What the Biden Administration May Bring for Tech Policy
As the Biden administration begins, Americans are relying on technology more than ever during the COVID-19 pandemic. Yet despite the increasing apparencies of its benefits, there are many on both sides of the aisle calling for new regulation of technology particularly surrounding social media and tech giants. The Biden administration should carefully consider the significant tradeoffs such regulation could have and embrace bipartisan opportunities to build on the success of the United States’ innovation-friendly approach.
Technology policy will be shaped not only by policies that directly address technology, but also by the overarching regulatory environment in which innovation develops and entrepreneurs pursue their ideas. In general, the United States has taken a light touch approach to most technologies avoiding regulation and government intervention except when necessary. This approach has been important in America’s leadership in innovation and allowed consumers to access the benefits of a wide range of apps, products, and new services. The new administration should continue this approach and carefully consider the tradeoffs that may be associated with such changes.
This piece will discuss some of the opportunities and challenges the Biden administration is facing when it comes to tech policy.
Opportunities to Continue America’s Strong Internet Infrastructure and Bridge the Digital Divide
During the COVID-19 pandemic, many of us have found ourselves with a new appreciation of technology. This includes stable internet infrastructure that allows us to go to work or school from home, social media that allows us to stay connected to friends and family, the growth of telemedicine, and the role of technology in assisting with contact tracing and delivery. The pandemic though has also highlighted concerns about those who may be struggling from lack of access to technology either through connectivity or devices. As a result, there have been increasing calls from both sides of the aisle to look for ways to help close the “digital divide.”
The Federal Communications Commission (FCC) in 2020 took many bipartisan steps to address the increased demands on America’s telecommunications infrastructure. This included opening up additional spectrum in rural areas and working with private industry to ensure struggling Americans did not find themselves disconnected. The Biden administration has an opportunity to build on this positive solution focused momentum.
While recognizing the growing need for connectivity, the Biden administration should look for ways to build on an approach that encourages private investment rather presume that cost is the key barrier or that a government solution would be superior. For example, while a 2020 report by the Open Technology Institute (OTI) argues that municipal broadband is often able to provide fast service at the most affordable costs, a review of the study by the Phoenix Center found that when other errors were corrected the cities with municipal broadband had an average cost 13 percent higher than comparable cities. Similarly, a 2019 analysis by Sarah Oh of the Technology Policy Institute found that municipal broadband did not increase adoption or provide economic benefits to the community.
Access in rural areas will require creative thinking and new technologies such as improved satellite internet. While calls for universal broadband may appeal to many, the reality of the cost to connect the most rural areas may make it difficult using only traditional broadband. The last two percent of households would cost $40 billion to connect. Yet, rural households are not the only ones that face problems in the digital divide. In urban environments, 5G may play an important role by more easily enabling the use of data intensive apps such as those used for telemedicine or virtual school in mobile only households. The result may be to look at other ways to provide the needed technological connections to these areas. The new administration’s FCC will need to work with innovators and remove unnecessary regulatory barriers to providing service.
The digital divide is a complicated issue and the reasons for lack of sufficient connectivity are different in urban and rural areas. Because the policy solutions will need to address a variety of reasons and should also empower state and local leaders to come up with unique solutions to address their community’s problems. Still, the Biden administration has many opportunities both immediately in light of the pandemic and in the next four years to build on America’s strong and innovative infrastructure to help bridge the digital divide.
The current pandemic has proven that the American internet infrastructure is robust. As the new administration begins, this unique time provides an opportunity to work in a bipartisan way that builds on America’s successful innovation culture and internet infrastructure to bridge the digital divide.
Debates Surrounding “Big Tech” and Online Speech Will Continue But With Different Reasons
The Trump administration saw many debates around social media companies content decisions and criticisms of tech giants with policymakers on both the left and the right calling for more regulation. The Biden administration will see continued debates around these issues, but will also see changes in some of the policy proposals debated. This new administration should be cautious of the consequences that regulation could have for online speech, innovation, and concentration in the market.
Critics on both sides of the aisle have called to revoke or change Section 230. Section 230 is a law that provides legal liability protection for online services for content their users post and enables them to engage in content moderation. While President Biden has not been as vocally critical of the law as former President Trump, during the campaign he too called to revoke this critical liability protection. The debate around Section 230 is likely to shift away from concerns about alleged anti-conservative bias to questions of if changes or additional regulation would limit the use of technology for hate speech and online radicalization. A Biden administration and the Congressional Democratic majority are likely to focus on calls for increased content moderation and perceived failures to take appropriate actions as opposed to the prior administration and Congressional Republicans’ focus on perceived over-moderation.
Those advocating for changes should be cautious of the impact they could have on important but sometimes controversial speech. For example, making platforms liable for their users’ content could easily lead to greater take downs around topics such as #metoo out of an abundance of concerns about the risk of potential litigation and limiting the benefits many minority communities have found in being able to connect online. Prior carveouts such as the Stop Enabling Sex Trafficking Act (SESTA) illustrate that even well-intentioned changes can have unintended consequences that limit speech and increase the risk of carrying online content. After SESTA was signed into law, platforms removed sections that they felt might increase their risk of liability. For example, Craigslist removed its personals section. Beyond these removals, companies including MailChimp and Salesforce have faced lawsuits over what bad actors used their tools to do. Such litigation risks would result in small platforms making difficult choices about carrying user content and the associated costs would be felt more acutely by smaller platforms seeking to compete with existing giants.
Beyond online content, the Biden administration, unfortunately, is also likely to pursue calls to break up Big Tech. These criticisms of the tech giants too have been strangely bipartisan with typical adversaries including Senators Ted Cruz and Elizabeth Warren finding agreement in calls to break them up. However, these calls are often grounded more in an animosity against technology or big business rather than evidence of anti-competitive behavior and the principles of fair competition ungirding antitrust laws.
Many of the proposed policy solutions would dramatically change antitrust laws by shifting focus away from the consumer welfare standard and instead return to a less objective standard that focuses on competitors or concentration instead. These proposed changes would not impact only today’s tech giants but any successful industry that might later find itself unpopular. Rather than dramatic changes in antitrust laws, the Biden administration should continue the objective, principled approach to antitrust that looks for market dominance, abuse of dominance, and consumer harm rather than presuming big is automatically bad. With what is currently known, the antitrust case against today’s tech giants typically fails at least one of these core elements. But even beyond technology, there should be caution around calls to overly expand definitions of harms or markets in ways that might not reflect the consumer experience or the disruption that innovation brings.
In addition to online content and discussions about antitrust, the Biden administration will also face continuing questions around data privacy, cybersecurity, and possibly the return of debates surrounding net neutrality. In considering internet policy related issues, the new administration should carefully consider the underlying principles that have led the internet to be a powerful tool for speech and innovation rather than allow animosity towards today’s giants or individual bad actors to drive policy that could stifle its benefits as well as its harms.
The Importance of Continuing to Avoid Overly Precautionary Regulation
One of the keys to the United States’ leadership in many innovative fields has been avoiding the burdensome regulation placed on entrepreneurs and innovators in places such as Europe. While there are times when regulation is appropriate and necessary, the light touch approach has allowed continued private innovation and investment. The Biden administration should look at ways to continue to embrace this approach and avoid restrictive red tape that could deter innovations in fields such as autonomous vehicles or the sharing economy. Additionally, an abundance of regulation would place a greater burden on smaller entrepreneurs and innovators who might be deterred from pursuing beneficial products due to the costs and time of red tape.
There are concerns that a Biden administration may take the more regulatory approach to innovations that focuses on worst-case scenarios rather than enabling beneficial uses of the technology. A more regulatory approach might lead innovators to pursue their innovations in other jurisdictions that allow for experimentation instead. For example, in part due to the regulatory framework, Amazon initially chose to test its drone delivery in the United Kingdomrather than the United States. There were concerns that similar choices could be made by autonomous vehicle innovators when faced with potential regulations that appeared focused on limiting rather than embracing the technology during the Obama administration. To avoid this, the Biden administration should carefully consider whether existing regulations may be preventing innovation and seek to remove these barriers. They should be cautious about the impact further accumulation of regulation could have on innovation in already heavily regulated industries disrupting the use and application of emerging technologies like smartphone apps, 3-d printing, autonomous vehicles, and Internet of Things connected devices.
Still, some certainty is often needed for emerging technologies and a regulatory framework can be part of that. The Biden administration should look to work with innovators and engage in regulatory humility embracing flexible “soft law” actions that more carefully examine the impact of regulation while allowing for innovation such as sandboxing and multistakeholder working groups. In general, the goal should be to provide innovators and entrepreneurs opportunities to try their new ideas rather than focus solely on restrictions and worst-case scenarios. The Biden administration should cautiously approach regulations for emerging technologies and consider not only the risk but the benefits of the technologies.
Technology policy is increasingly relevant in our digital age as the Biden administration begins. Like many other areas the pandemic has highlighted concerns, but it has also provided new opportunities. The new administration should seek to continue the United States’ light touch approach to technology regulation that has allowed innovators to bring their creative solutions to consumers without unnecessary burdens. It should avoid calls for regulation in areas that could diminish the benefits of innovation and the belief that government directed solutions would be superior to naturally occurring ones. Instead of focusing only on the problems of technology, the new administration should see the benefits a culture of innovation has yielded and seek to further enable the United States’ technological leadership.
Technology Policy Research Fellow
Cyber & Privacy
Federalist Society’s Telecommunications & Electronic Media Practice Group
The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the author(s). To join the debate, please email us at [email protected].