With Democrats projected to take back the majority in the Senate, tech bills that have languished in the Republican-controlled chamber during Donald Trump’s presidency could see renewed momentum.
While pandemic relief is likely to take center stage for much of the legislative session, the shift in power could still give Democrats the chance to advance their tech policy agenda.
Groups that have long pushed for tech policy reform are hoping to see their efforts bear fruit in the new Congress.
“Democrats have no excuse,” Evan Greer, director of nonpartisan digital rights group Fight for the Future, said in a statement on Wednesday. “They need to get to work right away protecting people’s basic rights in the digital age. This means quickly confirming a new chair of the Federal Communications Commission (FCC) who will restore net neutrality and ensure everyone has affordable Internet access in the midst of a pandemic.”
Greer added that protecting Section 230, banning facial recognition and passing strong national privacy laws should be among the actions Democrats take with their newfound control.
Here are the key ways Democratic control could impact tech policy in the Senate:
Cabinet nominee confirmation
One of the more immediate ways this could happen is by quickly confirming President-elect Joe Biden’s nominations to important cabinet positions like Attorney General and the Secretary of Labor, as well as new appointments to the Federal Trade Commission and Federal Communications Commission.
The Biden administration will be tasked with handling the federal lawsuits against Facebook and Google filed by the Trump administration. It will also likely continue ongoing research into other tech industry players through work at the Justice Department and FTC.
The Labor Department will face questions about how gig workers should be classified under federal law, which will affect companies like Uber, Lyft, DoorDash and Instacart. And the FCC will be charged with taking a stance on net neutrality and regulating programs that provide broadband access, which has become even more important during remote work and distance learning due to the pandemic.
Discussions about broadband access could be among the first tech policy topics to see the light of day in the new Congress given American’s increasing reliance on internet services to deal with stay-at-home orders. Those could naturally lead to a renewed focus on net neutrality, an Obama-era reform that sought to prevent internet service providers from favoring some internet traffic over other. That means users and businesses can’t pay for a “fast lane” or to slow down another website’s traffic.
The FCC achieved this under Obama by reclassifying ISPs as common carrier services under Title II of the Communications Act of 1934, which made them subject to greater regulation than under Title I. Trump’s FCC Chairman Ajit Pai undid that rule, though ISPs have not really taken advantage of the rollback. Some analysts say the real fear ISPs have with the FCC imposing net neutrality is that the agency could potentially use the same statute to impose price regulation.
That concern could actually be avoided by writing a more narrow law that enshrines the concept of net neutrality without reclassification. With Democrats in control and net neutrality serving as a popular Democratic issue, the topic could see more discussion this term.
In a deeply divided Senate, an overhaul of antitrust laws is still a tall order. But some more modest proposals could have the chance to advance with Democrats in control. The House Judiciary subcommittee on antitrust is already working on bills to reform antitrust laws after completing their investigation into Amazon, Apple, Facebook and Google that found that each holds monopoly power.
Sen. Amy Klobuchar, D-Minn., who has served as the top Democrat on the Senate Judiciary subcommittee on antitrust, has introduced several bills aiming to reform the more than century-old antitrust laws. The bills range in their boldness, from updating the filing fee for merger proposals to shifting the burden of proof onto companies with majority market share to prove their mergers will not be anticompetitive.
Digital political advertising
Like antitrust reform, regulating digital political ads could be limited to the least controversial proposals. But one bill that could quickly make a significant impact with a small reform is the Honest Ads Act. First introduced by Klobuchar with Sens. Mark Warner, D-Va., and the late John McCain, R-Ariz., it was reintroduced in 2019 with the support of Sen. Lindsey Graham, R-S.C.
The bill would make digital platforms subject to similar disclosure requirements as traditional forms of media when it comes to digital ads. In an interview last year, Warner told CNBC he’d thought the bill would be “the lowest hanging fruit, the biggest no-brainer just to kind of put points on the board.” With majority Democratic control, such reforms may again have the chance to advance to the floor.
Lawmakers have made significant progress in crafting digital privacy legislation but those bills have remained locked up by disagreements over how those bills should be enforced.
Both Democrats and Republicans want strong protections for consumers’ digital privacy rights on the national level. But Democrats think states should be able to build on those protections, while Republicans have advocated for the national standard to preempt state law to provide consistency for businesses. Democrats also want consumers to be able to sue companies they believe violated their rights, but Republicans fear that would lead to frivolous lawsuits.
Both sides believe the issue is fairly urgent to protect consumers. Without an election immediately on the horizon, there’s a chance lawmakers will be more willing to come to an agreement.
Facial recognition and surveillance
Concerns over facial recognition technology came to the forefront this summer in the wake of concerns over whether and how it might be used to observe the protests for police reform. Democrats in both chambers of Congress backed a push for a moratorium on facial recognition technology for use by law enforcement.
The technology has a spotty track record and has been shown to disproportionately misidentify people of color. In June, Amazon, IBM and Microsoft all voluntarily said they would abstain from selling the technology to varying degrees. But lasting rules would have to come from Congress.
Talks about reforming Section 230 will undoubtedly continue, but bills claiming to crack down on alleged censorship of conservative viewpoints (which social media platforms have denied) will have a harder time breaking through.
Democrats and Republicans largely agree that the decades-old statute protecting tech platforms from being held liable for their users’ posts needs to be tweaked. But they still are far apart on possible solutions. Trump tried to get Congress to repeal the law at the end of 2020, but that action seems to have limited support in Congress.