How Will Tech Policy Change In The Biden White House? Here’s What You Need To Know

Experts say the administration of President-elect Joe Biden is expected to be harder on the technology industry than the Obama White House and take a different approach than President Trump. Carolyn Kaster/AP hide caption

toggle caption

Carolyn Kaster/AP

Like the man he’s set to replace, President-elect Joe Biden doesn’t plan to play nice with Silicon Valley. He has promised to go hard on Big Tech, both taking Facebook to task for not doing enough to curb disinformation and backing the repeal of a law that has long protected the technology industry.

“The era of permissionless innovation is over,” said Darrell West, a senior fellow at the Brookings Institution who studies tech policy. “There’s going to be more public engagement, more public oversight and public regulation of the technology sector.”

President Barack Obama pushed policies embraced by the tech industry, but West said Biden will not follow that path.

“Biden will be tougher on the tech sector than Obama was because the party has moved to the left on tech policy,” he said.

Here are some of the biggest tech issues the Biden administration will start confronting in January.

U.S. v. Google

President Trump’s Justice Department filed an antitrust lawsuit against Google just weeks before the presidential election. The timing led some to question whether the move was made for political gain.

Still, the legal action is the federal government’s most significant challenge to the tech industry in more than two decades. It sets off what could be a years-long battle. If the government eventually prevails, Google could be forced to spin off parts of its business empire.

Biden’s Justice Department may not continue with this particular lawsuit, but it’s unlikely to ease up on Google. Democrats in Congress who support the Trump administration’s action against the company include Rep. David Cicilline of Rhode Island, who oversaw a 15-month investigation into the monopoly power of Big Tech companies.

And while Democratic-led states refused to sign on to the Justice Department’s suit, they are close to capping separate antitrust investigations into Google.

Venture capitalist and political consultant Bradley Tusk predicts Biden’s Justice Department may just withdraw the federal lawsuit and hit the restart button.

“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.’ “

But Mark Lemley, a Stanford Law School professor who focuses on technology issues, said it would be shocking if the Biden administration completely reversed course.

“I don’t see the case being dropped or withdrawn. On antitrust, the parties have a fair amount of convergence,” Lemley said. “I could see Biden’s administration refiling a broadened suit. The current suit is pretty narrow.”

Overhauling Section 230, known as tech’s “legal liability shield”

Section 230 of the Communications Decency Act, which has helped spur Big Tech’s exponential growth and provided the industry cover from lawsuits, generates fierce opposition among both Republicans and Democrats, but for different reasons.

The law gives tech companies immunity from lawsuits over what people post to their sites. At the same time, it leaves the choice to take down or flag content at the complete discretion of the companies.

Stanford’s Lemley said that first part is invaluable to tech companies.

“What the platforms really want to avoid is losing the legal liability shield,” Lemley said. “They would be happy to have some oversight and regulation if they still kept their immunity.”

Like Trump, Biden has said Section 230 should be repealed, but not because platforms are supposedly muting conservatives’ views, as the current president maintains.

Instead, Biden says social networks such as Facebook and Twitter have not done enough to police misinformation and hate speech, which, critics of the companies say, have helped amplify hoaxes and extremist views.

It’s not yet clear what the Biden administration would propose to replace the law, but the former vice president has said it should be revoked “immediately.”

Skeptics of scrapping the law warn about unintended knock-on effects, such as platforms getting overly aggressive about taking down content they fear could lead to a legal headache. Sites such as Yelp, Reddit and Wikipedia are expected to be hurt far greater than Facebook and Twitter, which get the most attention. And others say eliminating the law would stifle the next generation of Internet companies by essentially placing new restrictions on online speech.

It used to be the case that platforms believed they could do a fine job regulating content on their sites, but recent history has disproved that. Facebook’s Mark Zuckerberg now appears open to seeing Section 230 overhauled. Tech investor Tusk said it may be in Facebook’s interest to allow the government to step in.

“The more you bring government into it, the more you can ultimately blame them for content problems,” he said.

But Stanford’s Lemley warns that it could be bad for society to let the government set the rules of engagement.

“Imagine, for instance, what things would be flagged as misleading in a Trump administration versus a Biden administration if it were the government and not private parties making the decisions,” he said.

China’s growing involvement in personal technology

To some, Trump’s public spat with TikTok showed the president singling out a Chinese-owned technology company that has been used to embarrass him under the guise of unfounded national security concerns.

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

“Biden will take a tough stance on China,” said West of the Brookings Institution. “And Biden will actually have a strategy. Trump had neither a process nor a strategy.”

Those worries are expected to extend to companies such as Huawei, a major 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.

Biden is thought to share Trump’s suspicions about China’s ability to threaten Americans’ data security. As president, Biden will try to stand up to China while seeking to avoid an all-out trade war, experts said.

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

Fears that tech companies know too much about us

Tech policy watchers also have an eye on a national online privacy law, perhaps similar to the one that went into effect two years ago in Europe. Or California’s new data privacy law, seen as the toughest in the United States.

One thing is for sure, West said: People are fed up with tech companies gobbling up personal data in increasingly invasive 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,” West said. “Their worst-case scenario is having to comply with 50 different sets of state rules, which is a nightmare from their standpoint.”

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

“For many tech companies, the easy thing to do is to have a data privacy policy that is GDPR compliant,” Lemley said of the European law. “And once you have to do that in California, too, it just doesn’t make sense that you’d have different rules in Iowa and California,” he said.

“So what has happened in Europe and California will likely set the pace for a national statute.”

Future of the gig economy

The movement to regulate gig workers was delivered a major defeat on Tuesday when California voters passed Proposition 22, which will allow ride-hailing companies Lyft and Uber and food delivery apps such as DoorDash to keep workers in the state as independent contractors.

Labor unions had hoped voters would reject the measure, which could have forced Lyft and Uber to reclassify all of their drivers as employees with benefits. Union leaders thought that could generate momentum for similar sweeping changes for gig workers to pick up around the country.

Experts interviewed for this story all agreed that forcing technology companies to provide better pay, benefits and protections to workers is something the Biden White House may be able to accomplish.

“I can see Biden using his Department of Labor to put out some executive orders that would try to create more fairness in the gig economy,” West said. “Many Democrats are worried about independent contractors not getting benefits and not being well-treated, and there are a lot of things Biden can do without going through Congress.”

Venture capitalist Tusk, who has worked with gig economy companies for more than a decade, said there is growing acceptance among tech firms that workers deserve more.

“And workers want some flexibility, too, and so being able to give benefits like workers’ comp, disability, even the right to organize, without being considered a full-time employee is something a lot of startups would actually support.”

West said the issue dovetails with conversations about how the U.S. economy will function in a post-coronavirus world.

“A lot of legislators believe that one thing that is holding back the economy and also holding back the middle class is abusive behavior on the part of the large tech platforms,” he said. “So there’s real interest in regulating the sector, imposing guardrails and making sure they don’t become so big that they can overwhelm every small and medium-sized business in the country.”

H-1B visas for immigrant workers

Silicon Valley has long relied on H-1B visas for highly skilled workers, and immigrants make up the backbone of the industry. Foreign-born workers represent more than 60% of workers in computer, mathematics and engineering in the heart of the tech sector.

Trump’s immigration restrictions have reduced the pipeline of foreign-born workers for technology firms. Trump even tried to suspend all new H-1B visas altogether, but a federal judge stepped in and blocked it.

Trump’s hard line on H-1B was an attempt to give American workers priority, but tech industry insiders said it was a misguided policy that would not have accomplished that goal.

Biden has promised to reverse course on Trump’s H-1B visa limitations.

“The Trump administration’s hostility to H1B visas would go away, and that’s going to be a big boon for the tech industry,” Stanford’s Lemley said.

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 position on his presidential campaign website.

“Biden will support expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country, which create an unacceptably long backlog,” the policy says. But “high skilled temporary visas should not be used to disincentivize recruiting workers already in the U.S. for in-demand occupations.”