Joe Biden Gives Big Tech a Different Kind of Washington Problem

(Bloomberg Businessweek) -- At about 2:30 a.m. on Friday, with his chances for reelection looking grim, President Trump rage-tweeted about Twitter itself, saying the company was “out of control” and blaming a 24-year-old law that he falsely claims encourages America’s leading tech companies to censor their conservative users.

The source of the president’s frustration was obvious. The tweet was his 29th since the polls had closed on Tuesday, and Twitter had hidden 12 of them behind warnings that Trump’s communications could undermine the electoral process by misleading people. His Facebook posts were still visible, though they were also littered with disclaimers about the legitimacy of the voting process. In the eyes of Trump and his allies, this was all further proof of Silicon Valley’s campaign of anti-conservative censorship, an issue Republicans have harped on throughout Trump’s presidency.

This dynamic has made the Trump years uncomfortable for Twitter, Facebook, and Google. And while the Biden era seems unlikely to test the companies as aggressively on the question of adjudicating presidential lies—and likely means the end of White House troll summits—Silicon Valley won’t so easily regain the favored status it held when the president-elect last spent time in the White House. Many Democrats hate Big Tech, too; they just hate it in different ways. “Public opinion has turned against these companies,” says Gigi Sohn, a former staffer at the Obama-era Federal Communications Commission who’s now a fellow at the Georgetown Law Institute for Technology Law and Policy. “The big question is, what do you do about it?”

While Trump has stoked discontent over social media, he’s done little to stem the economic power of the biggest tech companies. The combined market value of Amazon.com, Apple, Facebook, Google, and Microsoft has roughly tripled from the $2.3 trillion they were worth on Election Day 2016. Those five companies now represent close to one-quarter of the total value of the S&P 500, about twice their share back then.

For almost two years, the Democrats steering the House Judiciary Committee’s antitrust panel have been laying the groundwork for the first overhaul of U.S. antitrust law in decades, with Big Tech as the main target. “If there’s one thing Congress should be doing—and Congress could do it even under divided government—it’s to fix antitrust law so it’s not completely meaningless,” says Sohn. This could mean breaking up companies deemed anti-competitive through such means as severing Instagram from Facebook or requiring Apple and Amazon to stop competing with the independent businesses that rely on their digital and physical delivery networks. Democrats could also pick up efforts to create a federal data privacy law.

The chances of a maximally aggressive approach dimmed when Democrats didn’t handily win control of the Senate, as some had expected. The news was enough to send tech stocks soaring on Wednesday, even though control of the White House was still up in the air. Still, the energy for change lies with Democrats who are worried about the concentration of economic power. “Both on the merits and the politics, our perspective is ascendant,” says Sarah Miller, executive director of the American Economic Liberties Project, a group pushing for more aggressive antitrust laws and enforcement.

This is a striking change from the Obama years, when Democrats lauded Silicon Valley as a key driver of innovation and sought to reshape government and other aspects of the economy in its image. A string of senior administration officials left to work for Big Tech, and in a 2016 interview with Bloomberg Businessweek, Obama hinted that his post-presidency might include trying his hand as a venture capitalist.

The trend seemed set to continue into a Hillary Clinton administration, whose proposed tech policy agenda focused on industry-friendly issues including patent reform and net neutrality. It was common at the time to marvel at software’s ability to change the world for the better, according to Ari Wallach, a futurist who was part of Clinton’s disruptive economy working group. “In 2016 it was ‘Let’s algorithm-ize everything,’ ” he says.

The 2016 presidential election saw a new antipathy toward the tech giants begin to crystallize among the liberal political class, as it highlighted how much power social media companies had over political discourse and just how big a few Silicon Valley companies had become. Today, many Democratic politicians see the term “algorithm” as a dirty word, associated with racially biased predictive policing and engagement-obsessed news feeds. Biden doesn’t even have a disruptive economy working group.

In part, the next president will pick up work on antitrust begun in the Trump administration. Last month, the U.S. Department of Justice sued Google in the biggest antitrust suit since the government went after Microsoft Corp. two decades ago. It’s very likely a sign of more to come. So far, the DOJ has aimed narrowly, at deals Google has signed with other companies to make its search engine the default in their web browsers and smartphones. Biden’s DOJ could decide to broaden the case, work with state attorneys general to bring parallel suits, or both.

The incoming administration also needs a new chair of the Federal Trade Commission, which has been investigating tech industry mergers and could soon announce a lawsuit against Facebook Inc. Of late, the FTC has been hamstrung by lack of staffing and a reputation for timidity. That could change if Biden dedicates more resources to the agency and appoints someone like Rohit Chopra, one of the FTC’s commissioners with a background in consumer protection, to the top spot.

Another issue to watch is Section 230 of the 1996 Communications Decency Act—the “government gift” to Twitter and social media companies that Trump was tweeting about last week. The law shields internet companies from certain kinds of legal liability stemming from content their users post. Liberal critics of the provision say it reduces Big Tech’s incentives to confront harassment and incitement. Right-wingers say they aren’t free enough, that the companies should have to demonstrate political neutrality to earn the protections. (Those who remember the fairness doctrine might appreciate the irony.)

This summer, Trump issued an executive order asking the FCC to reinterpret this law. The commission has begun that process, which is sure to face legal challenges if a Biden administration continues to pursue it, which it probably won’t. Many progressive experts think antitrust would be a better way to solve problems related to content moderation because it would create more competition in the social media industry.

Still, skepticism about Section 230 has also been building among Democrats. Biden suggested early this year that the law be repealed, though he mentioned the idea in an interview with the New York Times editorial board rather than in a bunch of all-caps tweets. There are Democratic proposals floating around to reform the law, but they’ll be competing for the attention of an incoming government with plenty else to do. The Trump administration has done little to mitigate the coronavirus pandemic, and Biden has signaled that health, safety, and economic stimulus efforts will be his top priorities. After that, strengthening voting and other civil rights, as well as climate change legislation, could all end up on the to-do list in front of technology issues.

Yet even if the sheer scale of the U.S.’s present crises allows Silicon Valley’s excesses to skirt the spotlight, the world’s biggest technology companies won’t be working with an administration that is overwhelmingly impressed by them. The best they can hope for might be a promise Biden made in July: “You won’t have to worry about my tweets when I’m president.”

©2020 Bloomberg L.P.