Trump vs. Biden: Technology and the Internet

Pillsbury Winthrop Shaw Pittman LLP

TAKEAWAYS

  • In this election cycle, technology and internet policy is a persistent factor across multiple issue areas. With implications for national security, economic equality, infrastructure and market regulation, the next administration will have to navigate several pivotal shifts with potential long-term implications.
  • President Trump and Former Vice President Biden are in unusual agreement on a number of issues such as the imperative to secure U.S. networks from foreign meddling, investing in expanding broadband access, expanding regulatory action targeting social media platforms and a more assertive presence of the U.S. military in cyberspace.
  • The candidates diverge on how to address these challenges but also on how to regulate important elements of the digital economy, including data privacy, workers’ rights in the gig economy and the extent of government involvement in spurring R&D into emerging technologies.

Bridging the “Digital Divide”
The next administration will oversee significant developments to the U.S. digital infrastructure and a growing imperative to expand access to high-speed broadband as well as 5G for Americans. Decisions will have to be made on the approach to IoT technologies, artificial intelligence and automation as other countries (mainly China) are investing heavily in developing the next generation of cutting-edge technologies.

Former Vice President Biden and President Trump have both presented plans for expanding broadband coverage, especially in underserved rural communities, to close the digital divide. The former Vice President has proposed to triple funding for Community Connect broadband grants and work with localities to target investments and invest $20 billion in U.S. broadband infrastructure, while also investing in 5G networks for areas where commercial interests might not warrant privately funded development.

The Trump Administration has similarly backed a $20 billion rural opportunity fund dedicated to expanding broadband coverage, a goal included in his 50-point reelection agenda. Another tool the Trump Administration will continue to make use of is deregulation through the FCC, removing barriers for online services such as telehealth and online learning, which may increase internet adoption rates.

The FCC is currently moving forward with a $100 million telehealth pilot program, set to launch in 2021 subject to approval by the Office of Management and Budget (OMB), providing universal service support for 85 percent of the cost of eligible services and network equipment. These include patient broadband internet access services, health care provider broadband data connections, other connected care information services, and certain network equipment such as routers. Democrats have also committed to reforming legislation to increase internet access, such as expanding the FCC’s Lifeline program and supporting the adoption of the Digital Equity Act.

While sharing the ambition of rapidly expanding the 5G network and insulating it from foreign threats, the two candidates will approach it differently. President Trump is likely to double down on exerting pressure on allied nations to follow suit while using deregulation to spur domestic innovation, including quick deployment of permits for use of controlled frequency spectrums.

The proposition to task DoD with creating a national 5G network has been floated by the President at times, leasing out access to private companies instead of handing direct control to traditional network operators. Whether it will become reality is debatable, and the idea has been welcomed neither by the private sector or government regulators.

Emerging technologies are also set to receive renewed attention from the next administration, driven by competition from China. The Biden Campaign has outlined a $300 billion investment in R&D and deployment of emerging technologies, including 5G and IoT products. Instead of leveraging intelligence sharing to counter adoption of Chinese hardware, he has promised to work with allies to cooperatively spur development of alternative, secure technologies. In addition to increasing R&D spending, the campaign proposes scaling up the SBIR program and make federal procurement promises. Internationally, a Biden Administration would likely seek to encourage standard setting for dual-use technologies emerging from these fields.

President Trump in August unveiled $1 billion in planned funding for AI research and quantum computing, also directing the DOE to establish quantum research programs as part of the larger cyber mission delegated to the Department. This is a reversal of administration policy previously keen to cut science funding.

Increased Pressure to Address Data Privacy
The TikTok ban initiated by President Trump, ostensibly over privacy concerns due to its Chinese ownership, received relatively bipartisan consensus, foreboding a likely uptick in enforcement against foreign companies perceived to threaten the data integrity of U.S. citizens. This is especially likely if the President is reelected, as part of a larger push to limit mainly Chinese ownership of U.S. companies.

Vice President Biden has expressed support for establishing privacy protections and personal data standards not unlike those adopted by the EU through the GDPR framework. Any such legislation would likely shift a considerable amount of power over how data is used from companies to consumers and require unambiguous consent for data collection, reporting of security breaches, and a right to be “forgotten” or block the sale of private data. In contract, when the GDPR came into force in 2018, U.S. tech platforms and the Trump Administration were critical, indicating that such regulation would find little support with President Trump if he is reelected.

As late as this summer, Congressional Democrats and Republicans introduced bills seeking to regulate the handling of data collected as part of companies’ response to the COVID-19 pandemic.

The similarities between the COVID-19 Consumer Data Protection Act (CCDPA) (R) and Public Health Emergency Privacy Act (PHEPA) (D) bills outline some key areas of potential bipartisan compromise. These similarities include limiting data retention, requiring express consent on data collection, mandating information about data usage to users, and a relatively broad scope of data covered by the bills.

But there are also two major sticking points—private right of action and the preemption of state law. Republicans generally oppose the first and support the second. A similar pattern of legislative disagreement occurred last year as well over an effort to craft a more general bipartisan data privacy bill.

A move towards stronger enforcement of online privacy protections instead of continued reliance on guidelines still seems likely. Beyond the increased threat of cybercrime and wariness about Silicon Valley consumer practices, U.S. lawmakers may find themselves becoming rule-takers on data privacy unless significant legislation is adopted. The European Court of Justice (ECJ) striking down the EU-U.S. Privacy Shield system also showed the vulnerability of the current system and the risk of thousands of U.S. companies being shut out of European markets over security concerns. The good news is that Standard Contractual Clauses (SCCs) remain effective—although there are caveats as to their use.

President Trump’s reactionary approach to the transatlantic relationship may not allow his administration to accept such a position. While the White House has so far shown little interest in strengthening data protections, it has been vocal with its displeasure over both GDPR and other practices taken by foreign governments that has been perceived to target the competitiveness of U.S. tech firms. The next administration will continue to face a new generation of state privacy laws such as the California Consumer Privacy Act (CCPA) and New York’s SHIELD Act, which are shaping the data protection activities of many private firms.

With neither candidate expressing a clear way forward on data privacy regulation, Congress will likely lead any reform initiatives.

Bipartisan Push for Antitrust Enforcement
Democrats have been split on the issue of big tech breakups. While Vice President Biden’s top contenders for the party’s nomination, Senators Sanders and Warren, publicly called for government action to break up monopolizing companies on the back of anti-competitive actions, the former Vice President has not gone as far.

However, a President Biden would not be an unambivalent ally of Silicon Valley, either. Despite the Obama Administration’s relatively warm relations with tech companies and running mate Kamala Harris’ ties to the California innovation hub, Former Vice President Biden has been critical of weak enforcement of antitrust laws. With a party whose left wing is increasingly in conflict with corporations over a host of issues including labor rights, weak disinformation policing and campaign finance issues, Biden has had to modify his position. To that effect, the unity platform created by representatives of the Biden Campaign and Democratic progressives includes an opening for breaking up large corporations, but only as a “last resort.”

President Trump has moved away from his generally pro-business stance in regard to the tech sector, chiefly motivated by perceived political bias in the handling of moderation of conservative opinions on online platforms. In congressional hearings, GOP lawmakers have echoed concerns over the monopolistic standing of big companies like Google and Facebook which, coupled with accusations of silencing conservative views, has made for a potent basis on which to pursue antitrust action.

Under the Trump Administration, the FTC and Department of Justice have launched probes into Facebook and sued Google in some of the most drastic antitrust enforcement efforts against the tech business in decades. Congress has shown unusual bipartisan support for ramping up pressure on big tech, and it is unlikely that it will relent after the election regardless of who enters the White House in January 2021. Both candidates will likely pursue legislative action to improve competition and limit the power of dominant Silicon Valley companies.

On Capitol Hill, a series of hearings with tech CEOs have demonstrated that the nature of antitrust legislation targeting the tech sector is a partisan issue. The House antitrust subcommittee released competing majority and minority reports, with Democrats proposing wide-ranging action against anti-competitive behaviors. Options presented included mandating structural separations, nondiscrimination rules for giving preference for their own services over others on online marketplaces and restricting what lines of business the large technology companies can operate in. These proposals are non-starters for Republicans, who prefer to tweak existing law rather than introduce new, broad antitrust legislation.

The next administration will be keen to pursue antitrust litigation against big tech companies regardless of election outcome. The recent filing against Google has bipartisan support, and similar cases are increasingly being pursued by state AGs from both parties. If Vice President Biden is elected on November 3, he will inherit not only a major case, the handling of which will signal his administration’s direction, but also a political turning point in the public understanding of relation between corporations and public institutions. His party, especially its progressive wing, will be keen to seize this moment.

The End of Section 230?
The more than two-decades-old platform liability shield, Section 230 of the Communications Decency Act, has been challenged by half-a-dozen Congressional bills as well as recent executive orders and regulatory actions from the Trump Administration. The President’s actions have largely been in reaction to platforms removing or moderating content published by himself or his supporters, most recently prompting the FCC chairman to announce his intention to clarify the agency’s interpretation of Section 230, likely in a way which would gut the protections currently enjoyed by companies such as Twitter and Facebook. The FCC General Counsel maintains the Agency’s rulemaking authority in relation to Section 230 pursuant to Supreme Court precedent.

For Former Vice President Biden, repealing Section 230 is another step toward forcing large social media companies to act against harmful content. Bipartisan bills introduced in Congress could retain its core but require regular reporting on content moderation activities and swift timelines for enforcing court-mandated removal of information. One such example is the PACT Act, introduced by Senators Thune and Schatz. Biden has yet to formulate what would replace Section 230.

The former Vice President has placed self-policing front and center of his approach, inviting large tech platforms to the table in international forums to agree on codes of conduct delivering a social media sphere more conducive to democratic values. This would mean more transparency and oversight of content algorithms and expanded content moderation.

President Trump has not made any similar calls for moderation or industrywide standards. His issue lies with perceived over-policing of conservative content and he seems content with simply removing liability protections without introducing any comprehensive replacement or industry standard.

Deciding Moment for Gig Economy
Vice President Biden is likely to be instinctively hesitant about acquiescing to the labor practices of Silicon Valley firms. He has gone on record criticizing them for overstating their economic importance (chiefly due to their low employment compared to other large, traditional firms) and has supported legislation forcing tech companies to pay gig workers fair wages, provide benefits and respect the right to organize—essentially recategorizing workers as proper employees.

The Trump Administration has opposed such moves, arguing that the flexible terms offered to gig workers enable them more control over their employment situation. The Department of Labor has made statements (although no official rulemaking) to that effect, while also classifying workers finding temporary work through online marketplaces or referral apps as contractors and not subject to the Fair Labor Standards Act—leaving these workers without key protections or leverage in labor disputes. While this interpretation does not explicitly include ride-hailing or delivery companies, it is indicative of the Trump Administration’s general unwillingness to extend labor protections to the gig economy.

The fight over the rights of gig workers in California offers a window into the two parties’ positions, with two opposing bills supporting gig workers’ labor rights or conversely affirming the flexible employment contracts in use by tech platforms currently part of the legislative debate. The two campaigns have taken largely opposite positions on these bills, California Assembly Bill 5 and Proposition 22.

The Biden platform calls for a national equivalent of the AB5, which establishes an “ABC” test for determining whether a gig worker is to be considered a full-time employee and not a contractor—essentially reclassifying drivers for ride-sharing companies or other workers in similar contractor-reliant companies as employees. For gig workers, this would affirm the right to receiving health care benefits and paid leave. The California version was met with an ultimatum from tech companies threatening to leave the state and elicited strong criticism from the Trump campaign.

Republicans are more likely to move in the direction of Proposition 22, an initiative on the November ballot which has support from the business community. It would create a new type of contractor classification guaranteeing expanded rights and a salary above the minimum wage level during “engaged time,” i.e., when actually engaging with a customer. While the President has not endorsed the bill, it shares some key interpretations of the gig economy labor relations with the views taken by his Labor Department.

A More Assertive U.S. Presence in Cyberspace
Under President Trump, U.S. Cyber Command has received guidance essentially establishing a doctrine pivoting toward offensive operations and deterrence, while largely continuing the public-private cooperation which has been central to cyber defense under past administrations. Disrupting attacks has gone from a mere mention under the Obama Administration to a central effort under the Trump Administration, moving toward treating cyberspace operations similarly to military activity in conventional spheres of conflict.

Despite expressing reservations about the illicit involvement of foreign governments in U.S. politics, the Trump Administration has levied diplomatic punishments on Russia and China over such activities as well as acted against industrial espionage. Both countries have had diplomatic officials expelled.

This more aggressive posture will endure a change in administration. Vice President Biden has expressed rare agreement with President Trump’s policies in this area, but also called for a more sustained and strategically driven approach to U.S. cyber defense. Democrats’ more hawkish view about the threat of foreign election interference is likely to be a key driver for a Biden Administration in creating a systematic approach to disinformation and hacker attacks, essentially an evolution of Trump era policies.

The candidates also largely agree on the hardware side of the issue. Both oppose the involvement of Chinese firms in the building of an American 5G network. Wariness about the Chinese Communist Party’s influence over private companies will continue. Even as the former Vice President has criticized President Trump for his approach to trade disputes, there is bipartisan consensus for more stringent export restrictions and investment reviews for critical technologies in general.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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