How Joe Biden's 'Complicated' Relationship With Big Tech Could Impact Section 230 and Monopoly Lawsuits

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What Joe Biden’s ‘Complicated’ Ties to Big Tech Mean for Antitrust Crackdowns and Content Moderation

Taking a look into the crystal ball to see what Biden has in store for Big Tech is murky, at best

The incoming Biden administration’s relationship with Big Tech is complicated.

The Democrat enters the White House with less outward (and frequent) hostility toward tech giants like Facebook and Amazon than President Trump, and Biden’s team, at least initially, appears to have a cozier relationship with Silicon Valley than his predecessor. At the same time, Biden’s win, coupled with a Democratic-controlled Congress, adds to the growing momentum behind antitrust crackdowns on some of the top tech companies.

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Here are some of the ways that the tech world could change under the new presidency.

1. Antitrust Lawsuits Await

Biden’s term will start with a Justice Department antitrust lawsuit against Google and a Federal Trade Commission antitrust lawsuit against Facebook already underway. It’s true that Biden hasn’t been as adamant about breaking up Big Tech as Sen. Elizabeth Warren and other notable Democratic leaders, but he hasn’t written it off, either. Biden previously said tech breakups are worth taking a “really hard look at,” and there are indicators he’s warming to the idea of proscriptive action.

The American Economic Liberties Project, a Washington, D.C.-based antitrust group, recently shared a report pushing the Biden Administration to expand its inherited antitrust battles and to be aggressive in targeting other Big Tech firms. This is worth pointing out because Sarah Miller, the group’s leader, has been working with the Biden transition team. And it’s especially important because it signals the Biden Administration understands the current political zeitgeist is anti-Big Tech.

In October, the House Judiciary subcommittee on antitrust reported the “Big 4” — Apple, Amazon, Facebook and Alphabet, Google’s parent company — enjoy “monopoly power” over their competitors. The report, spearheaded by a Democratic majority, recommended Congress change current antitrust laws to better account for the digital world, with the aim of breaking up the tech giants into smaller companies. That sentiment is still strong — and it’s become a bipartisan issue. The FTC’s antitrust case against Facebook, for example, has the support of 48 state attorneys general, showing how this is a rare topic both Democrats and Republicans seem to agree on right now.

Bank of America analyst Justin Post, in a recent note to clients, said he expects the “regulatory overhang” for companies like Google and Facebook to continue under Biden. Factor in Democrats taking control of the Senate, and suddenly things look a little dicey for Big Tech.

“With the Democratic sweep, we see a slightly higher possibility for new legislation that: 1) establishes a Privacy Bill of Rights restricting the use of personal data; 2) re-defines market power in large tech; and, 3) regulates companies as digital utilities,” Post explained. “We also think the Democratic Party-led government will even more strongly support the DoJ and FTC efforts to break-up Alphabet, Amazon and Facebook. President-elect Biden’s decision to name Bruce Reed (helped craft the landmark 2018 California Consumer Privacy Act) as top technology advisor signals higher probability for the administration to adopt a regulatory agenda focused on consumer policy protection (similar to GDPR in Europe and CCPA in California).”

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2. China and the Tech World Business Environment 

Other analysts, though, have argued Biden could be better for Big Tech than Trump from a business environment standpoint.

Wedbush analyst Dan Ives, in a recent note to clients, pointed out Biden is expected to deescalate trade tensions between China and the U.S. Most notably, Biden hasn’t said much of anything about Trump’s infamous attempt to ban the social-media app TikTok, which was based primarily on the app’s ties to China’s government. It’ll be worth watching how Biden handles that case, which is stuck in regulatory limbo. That’s a welcome change for companies with strong ties to China, such as Apple, since the “biggest policy risk” they’ve faced in recent years, Ives said, has been the lingering Trump-China rivalry.

“Based on policy platforms, (Wall Street’s) view appears to align with our outlook that a Biden presidency will take a much more friendly tone on China technology and policy issues, which could ratchet down tensions and rhetoric between U.S./China potentially slowing down the decoupling of the world’s largest economies,” Ives said. “While longstanding issues around piracy and IP theft are not going away, this result would be a major bullish sign for the likes of Apple, Cisco and (semiconductor companies) still caught in the crossfire on this ongoing U.S./China Cold Tech War.”

This is what makes projecting the next four years for Big Tech under Biden difficult. While anti-monopoly measures appear to be gaining traction, some business factors also appear to be improving for the tech giants. You can get whiplash just trying to follow it all.

Mark Zuckerberg (Facebook)

3. Content Moderation and Section 230

Consider this: Biden, like Trump, has been critical of Section 230 of the Communications Decency Act. The 25-year-old law grants broad legal protections to tech companies, barring them from being held liable for what its users post. Last year, Biden said Section 230 “immediately should be revoked” — but he comes at it from a different angle than Trump, who has claimed platforms like Facebook and Twitter unfairly censor conservative voices. Biden, on the other hand, said the law should be revoked for Facebook “because it is not merely an internet company. It is propagating falsehoods they know to be false.” (Biden has also called Facebook CEO Mark Zuckerberg a “real problem.”)

In short: While Biden would like to see more robust content moderation, Trump would like to see less. But they’ve arrived at the same point, which is that Section 230 needs to be revamped.

That tough talk is undermined a bit, though, by the optics for Biden. “Facebook,” Reuters reported this month, “has already made significant inroads into the Biden transition team.” For instance, former Facebook executives Jessica Hertz and Austin Lin are both working on the Biden transition, while former board members Erskine Bowles and Jeff Zients are also playing key roles in the new adminisration (in Zients’ case, as Biden’s choice to be the new COVID-19 czar).

If you’re confused, that’s understandable. Biden wants to target a piece of legislation that’s essential to Facebook while also seeking the counsel of prominent ex-Facebook employees? It doesn’t really add up.

Facebook and Twitter may be trying to win the new administration’s favor, too, with their recent decision to ban President Trump from their platforms. (In Twitter’s case, the ban is permanent.) The decision came more than a year after Vice President Kamala Harris notably called on Twitter to boot Trump. A cynic could argue banning Trump was a proactive step by Facebook and Twitter to show the new administration they’re serious about reshaping their platforms — without needing major Section 230 changes compelling them to act.

Given the conflicting signs, it’s hard to forecast what how the Biden administration will impact Big Tech. One certainty: the next four years are going to be interesting.

Sean Burch

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