The Biden administration’s first two years produced far-reaching bipartisan victories, from the President’s infrastructure bill to this year’s CHIPS Act. Yet, for all the hype over plans to remake US tech policy, not a single antitrust, privacy, or content moderation bill crossed the President’s desk. In the dwindling days of the 117th Congress, it appears as if no major tech legislation will be passed.
So, what lies ahead for tech policy? As Republicans take control of the House and Democrats keep the Senate, the country looks set for a congressional logjam. The Supreme Court is reaching to take the wheel, ruling on potentially historic cases covering Section 230 and the First Amendment’s protection of online speech.
The upshot could see the US moving to curtail platforms’ abilities to moderate dangerous content, while Europe races in the opposite direction. The EU is scheduled to implement two landmark pieces of legislation, the Digital Markets and Digital Services Acts, both of which require tech to take new responsibilities to prevent illegal disinformation and hate speech.
Looking ahead to 2023, it’s worth considering where US tech policy is headed in each branch of government.
When Republicans take the House, the lower chamber of Congress is likely to focus its tech policy efforts on the issues of online speech and content moderation. The Republican House will continue to build on its “Big Tech Accountability” platform, heavy on oversight hearings, “jawboning” platforms to scale back their content moderation policies and passing party-line bills that Senate Democrats will block. Areas such as cryptocurrency, consumer privacy, and autonomous vehicles may be less headline-driven opportunities for bipartisan consensus.
The incoming House Judiciary Committee will focus on Federal Trade Commission (FTC) oversight, including Chair Lina Khan’s use of unpaid consultants. House Republican Leader Kevin McCarthy has opposed both the American Innovation and Choice Online Act (AICOA) and the Journalism Competition and Preservation Act (JCPA) – two main tech antitrust bills pushed by this year’s Democratic Congress. Under his leadership, both bills are nonstarters.
The Senate is set to take a different path. Senate Democrats look set to continue their past tech antitrust agenda, including a push for AICOA, app store legislation, and JCPA. Yet the party is divided: each of these bills faced Democratic criticism in 2022. Without meaningful substantive changes to the bills, they are unlikely to advance in 2023.
When it comes to speech online, House and Senate Republicans could hold Section 230 hostage, threatening tech companies with the law’s repeal unless platforms reduce moderation of MAGA and extremist content. Expect an increase in letters and hearings from Republicans to platforms, challenging their decisions on individual content moderation decisions. Watch for Republicans to threaten regulatory punishments if platforms don’t support Republican culture complaints.
For all the sound and fury, it’s unlikely Congress will pass substantial changes to antitrust law, digital privacy regulations, or the rules governing online speech.
The situation is different in the Supreme Court, where a conservative majority has the power to US reshape tech policy. Justices are slated to consider Gonzalez v. Google, focusing on whether online platforms’ ranking and recommendation algorithms enjoy liability protection under Section 230. Conservative Justice Clarence Thomas advocates treating platforms as “common carriers,” barred from moderating content. The Court could undermine Section 230 and protections that platforms depend on to take down harmful content.
Separate from Gonzalez v. Google, the federal circuit split on the Florida and Texas anti-moderation laws makes it likely that those cases will be combined. The combined case will focus on platforms’ First Amendment rights to moderate content.
The question facing the Biden administration agencies is whether their high-profile lawsuits and regulations targeting the tech industry will succeed or flame out. Faced with a divided Congress, President Biden could advance his tech policy priorities through executive action, including agency lawsuits and executive orders. There’s also an opportunity for the administration to pursue apolitical priorities, expanding broadband access, devising privacy rules, and promoting autonomous vehicles.
Antitrust will produce most of the headlines. Arguments will be heard in December in the FTC’s challenge of Meta’s Within VR acquisition. Longer-gestating cases – including DOJ’s case against Google’s search syndication practices, and FTC’s case against Meta’s Instagram & WhatsApp acquisitions – will move closer to court rulings. As the competitive market evolves, particularly with the continued runaway growth of TikTok, some of these cases will age poorly.
Attention Turns to the Courts
While parties in Congress agree that something must be done about America’s tech sector, their goals and priorities are often not just at odds, but diametrically opposed. Congress is at war with itself, leaving President Biden little opportunity to advance tech policy.
That’s why all eyes are on the court. In 2022, the US Supreme Court produced precedent-busting rulings curtailing abortion and increasing gun rights, it could now upend the US tech industry.
Adam Kovacevich is CEO and Founder of the Chamber of Progress (progresschamber.org), a new center-left tech industry policy coalition promoting technology’s progressive future. He has worked at the intersection of tech, transportation, and politics for 20 years, leading public policy at Google and Lime and serving as a Democratic Hill aide.