by Rachel Griffin
Since taking office in January this year, Joe Biden has faced many difficulties in implementing his agenda. With a razor-thin Democratic majority in the Senate – made even thinner by the refusal of senators from the right of the party to vote for progressive spending commitments – many of his key political initiatives are stalled indefinitely, or have been cut down so much they are barely recognisable.
But digital policy is in some respects less contentious than other aspects of Biden’s programme – and it’s also an area where the administration can achieve a significant amount through executive agencies and presidential powers, rather than legislation. So based on Biden’s actions in the first year of his presidency, what can we expect from his administration in this area?
Perhaps the most notable changes Biden has made in digital policy, and those which will have the most immediate effect, are his choices of appointments to top positions within the federal government.
The most attention-grabbing was the appointment of Lina Khan as chair of the Federal Trade Commission (FTC). Along with fellow Columbia professor Tim Wu – also now appointed as a presidential advisor – Khan is one of the most recognisable faces of the ‘New Brandeisian’ movement in antitrust law. The New Brandeisians are inspired by the antimonopolist policies pursued by the US government in the early twentieth century – before the ascendance of neoliberal Chicago School approaches to antitrust law, which claimed that monopolies were only damaging if they raised prices for consumers. They argue that concentrated corporate power is inherently harmful to the public interest (for example, by discouraging innovation) and undermines democracy.
They have taken particular aim at dominant tech platform companies, often calling for them to be broken up or subject to strict restrictions on anticompetitive behaviour. Khan made her name in academia with an article outlining how antitrust law should address Amazon’s abuse of its funding and market power to crush competitors. The big tech firms seem to take her antimonopoly agenda seriously. Amazon has sought to have her recused from cases for bias. More recently, the US Chamber of Commerce – heavily funded by big tech – has openly gone on the offensive, claiming that ‘we have to go to war back’ against the FTC and planning to obstruct its investigations as much as possible through constant legal actions.
However, Biden has also signalled his commitment to a pro-competition agenda. In a July executive order (likely heavily influenced by Wu) he states that inaction by antitrust regulators has weakened competition in many markets, harming consumers, and calls for coordinated actions across government to strengthen antitrust enforcement. In particular, he encourages the FTC to use its rulemaking power to completely ban types of anticompetitive behaviour that have proven problematic, rather than only taking legal action after the fact. Practices such as using dominance in one market to hold back competition in another market, or exploiting data on competitors to gain an advantage, are ubiquitous among major tech companies – and could be significantly restricted by FTC rules in future.
Moreover, this is a rare area of bipartisan support for reform. A 2020 review of competition in digital markets by the House of Representatives’ Judiciary Committee, which heard testimony from the leading big tech CEOs, led to a scathing bipartisan report on their anticompetitive practices which called for significant antitrust reform. The Committee followed up by introducing and passing six new antitrust bills in June 2021, which would provide more resources to the FTC, ban self-preferencing by platforms and make it harder for big tech companies to neutralise competition by buying smaller rivals. It’s not clear yet whether all of them will pass the whole legislative process, but Democratic senator Amy Klobuchar has introduced corresponding proposals in the Senate in cooperation with Republican senators, which might suggest they have a good chance of passing with bipartisan support.
It’s also becoming clear that the FTC’s new agenda goes beyond competition. Notably, Khan has hired as advisors several academics and activists working on digital justice issues, including Meredith Whittaker, Amba Kak and Sarah Myers West of the AI Now institute. Biden has also proposed the appointment as Commissioner of Alvaro M. Bedoya, a legal scholar known for working at the intersection of privacy and civil rights issues. In Bedoya’s confirmation hearing this month, he advocated for only minor reforms, such as an update to the US’ narrow children’s privacy law to include teenagers – suggesting that significant federal reform of privacy law, which is widely considered to be long overdue, may not be on the table. Nonetheless, his appointment could promote a broader focus within the FTC, extending to public interest issues in digital policy beyond market competition.
In another notable appointment, Biden has appointed critical science and technology studies scholar Alondra Nelson as deputy head of the Office of Science and Technology Policy (OSTP). Appointing a social scientist signals a welcome focus on the social impacts of technology, especially for marginalised groups, rather than only ‘hard science’ and promoting innovation. Nelson is an expert on bioethics and racism in science and medicine, who has written books on consumer DNA testing and the Black Panther Party’s activism for healthcare justice. OSTP head Eric Lander has also been elevated to cabinet level, reflecting the increased importance Biden attaches to active federal involvement in science and research policy, compared to Trump’s generally laissez-faire approach.
Lander and Nelson recently published an op-ed highlighting how AI deployment can reinforce discrimination and oppression of disadvantaged groups. It announced that the OSTP will work on a ‘tech bill of rights’ to clarify the public interest principles data-driven technologies should follow. The concrete policy actions they allude to – such as requiring compliance in federal government procurement policies – indicate that there is room for action, even in a state of legislative gridlock.
A final appointment which does seem stalled for now is that of a new commissioner for the Federal Communications Commission (FCC), which regulates telecommunications services including ISPs. Under Trump, the FCC abolished the ‘net neutrality’ rules that banned ISPs from discriminating between different sources of traffic (for example, to charge for faster connections). Biden has been under pressure to reinstate them, but Republicans remain strongly opposed – and as a result, the Senate is refusing to appoint a new Democratic commissioner to the five-member commission, which would give the Democrats a three-seat majority.
New York Times tech journalist Shira Ovide has noted that ‘hating Big Tech is one of the few areas of bipartisan agreement’ – and nowhere more so than in the regulation of online speech, where both parties have been highly critical of the major social media platforms. So many bills to reform social media have been proposed by Congress members that media outlets including Lawfare are now maintaining lists to keep track.
That said, their criticisms tend to diverge sharply. Republicans mainly argue that platforms are too willing to intervene and censor right-wing perspectives, while Democrats criticise their inaction on hate speech and misinformation, and have often argued that section 230 of the Communications Decency Act – which immunises platforms from liability for user-generated content, even if they are aware of unlawful activity and take no action – goes too far and needs to be reformed. It’s not clear that any of the bills that have been proposed will gain broad enough support to pass. Equally, although Biden was critical of social media during his campaign – he published an open letter calling for Facebook to take more action on misinformation – he hasn’t chosen to make this a priority.
Social media tend to attract the most media attention, but Biden has also indicated intentions to reform some other areas of platform regulation. He has criticised the exploitation of ‘gig workers’ by companies like Uber, and called for them to be covered by employment protection laws. However, this is another area where the deadlocked Senate makes progress unlikely – especially as many pro-business Democrats also oppose strengthening platform workers’ employment rights. A major element of Biden’s programme, the PRO Act – which would have significantly strengthened workers’ rights and collective bargaining across the economy, including for platform workers – seems permanently stalled in Congress.
Major legislation to regulate AI is also considered unlikely, but the administration has taken some regulatory actions: for example, an inventory is being created of AI tools used by federal government agencies, which should be made public by the end of this year and used to check their compliance with civil rights and other public interest principles. As proposed in a policy paper by former commissioner Rebecca Slaughter, FTC rulemaking could also play an important role in regulating AI, in particular where companies make inaccurate claims about their systems’ abilities – such as the supposed ability to detect someone’s gender from their appearance, or reliably identify emotions based on facial expressions, both of which are scientifically unfounded and harmful.
China’s economic and political ascendance has become one of the most-discussed topics in Western foreign policy – and tech policy plays a major role in its rivalry with the US. Both countries are competing to develop the most advanced military technologies (including AI), dominate digital markets, and produce key technologies self-sufficiently. While Biden is much less openly aggressive towards China than Trump, the expert consensus seems to be that his China strategy will be ‘a more polished and multilateral version’ of his predecessor’s. For example, he has pledged aggressive enforcement on China’s alleged unfair trade practices.
Supply chains have become a key arena for this conflict. The US’ dependence on China for key inputs for tech hardware, such as rare earth metals, is increasingly discussed as a threat to the economy and to national security; soon after taking office, Biden ordered a review of strategic tech supply chains which led to new policies to promote domestic industry, including the CHIPS for America Act, which provides new subsidies and incentives for domestic semiconductor production. In the context of a global shortage of semiconductors – which are essential for modern computerised devices to function, and which can only be produced in a small number of countries with highly advanced and specialised industries – Biden is continuing to put pressure on China by shutting it out of semiconductor markets.
Other multilateral foreign policy actions can partly be understood through the lens of this geopolitical conflict. For example, at this autumn’s G20 summit Biden agreed to the OECD’s proposal for a global digital tax, which would prevent US companies from operating around the world without paying taxes by transferring revenues to subsidiaries in tax havens. Such a tax had long been opposed by the Trump administration and was a key point of conflict with European countries, especially France. Biden’s concession can be seen as part of a broader strategy to shore up relations with the EU and other major democracies (such as the ‘Quad’ members Japan, Australia and India) to form a more united bloc against China.
Supply chains illustrate another aspect in which Biden’s technology strategy diverges from Trump’s is his greater openness to an interventionist industrial policy. The CHIPS for America Act and Biden’s other supply chain policies include a range of new subsidies, loan guarantees, and incentives for companies to site production facilities in the US.
In contrast to Trump’s policy of letting the private sector lead, he is also promoting more federal involvement in funding and directing technology research – with public interest goals in mind, even if they are still subordinated to market priorities. A letter from Biden to OSTP head Eric Lander in January 2021 called for a ‘reinvigoration’ of national R&D policy, aiming not only to make the US a world leader in future technologies, but also to ‘learn from the pandemic related to our public health’ and ‘share the fruits of science and technology’.
In June, the government successfully passed the US Innovation and Competition Act in the Senate, which will provide $244 billion for tech research and development. A new AI research task force has also been created to expand access to the expensive data and computing resources needed for cutting-edge AI research – although none other than now-FTC advisor Meredith Whittaker has been highly critical of the initiative, arguing that given the extent to which these resources are now dominated by big tech firms, the programme will effectively subsidise them by licensing their infrastructure to smaller organisations while allowing them to continue controlling the terms of AI research.
Finally, expanding broadband access was a key promise of Biden’s campaign – and one which is urgently needed. According to FCC statistics, 14 million people in America still have no access to broadband; the Pew Research Center has found that 15% of households with children in school – typically lower-income students of colour – do not have a fast internet connection. This digital divide became sharply apparent during the pandemic, when stories emerged of many children having to sit in carparks to use businesses’ public WiFi for their remote schoolwork. Biden’s infrastructure bill, which has passed the Senate with Republican support, fails to deliver many of the policy promises Democrats were hoping for – but it does include $65 billion of investment in broadband, which will include grants to states to improve infrastructure and a direct benefit for low-income households to help them afford broadband service.
Rachel Griffin is a PhD candidate at the Sciences Po School of Law and a research assistant at the Digital Governance & Sovereignty Chair. Her research focuses on social media regulation as it relates to social inequalities
Crédits photos : m.elyoussoufi / Shutterstock