Impact of Biden Presidency – How Did We Do?

How does the election of Joe Biden as the 46th President of the United States impact the top digital public policy issues in 2021? We go through the Top 10 issues from 2020 based on the PEI daily updates and project the likely impact
Last January, we analyzed how the election of Joe Biden as President would impact the trajectory of the Top 10 Digital Platform Public Policy Issues of 2020. Unlike most forecasters, we’re going back a year later to take a look. Last year’s predictions are in black, while the end-of-year updates are in red. By the way, PEI has released its Top 10 Digital Platform Public Policy Issues of 2021, which you can find here.

January 2020 — 10. US Privacy Policy – Moderate Impact

Many predicted that Congress would enact federal privacy legislation in 2020. It did not happen. Interest remains on both sides of the aisle, but big policy disagreements divide Democrats and Republicans, especially over allowing consumer class action lawsuits and preempting aggressive state privacy laws with new federal standards. A Congress with very narrow Democratic control means comprehensive federal privacy legislation remains a longshot in 2021. Neither side seems likely to back down on those big issues. However, a Biden FTC is likely to be much more aggressive that its predecessor. A bonus question is whether a Biden Administration focused on better relationships with European allies can resolve the European courts’ concerns with US digital surveillance and anti-terrorism laws to facilitate ongoing data transfers.

January 2021 Update – As expected, federal privacy legislation remained stalled in the narrowly-divided Congress. Neither side was willing to back down on the role of consumer class-action lawsuits or preemption of state laws. The expected aggressiveness of the Biden FTC is emerging, leading to more partisan rancor, and data privacy is on the agenda for 2022, so it may have more real-world impact in the coming year.

January 2020 — 9. Social Media Content Moderation – Moderate Impact

Both Democrats and Republicans consistently criticized the social media giants in 2020 over content moderation policies. But they never agreed on what the problem was. Democrats saw much disinformation and hate speech slipping through and causing harms. Republicans saw ideologically narrow platforms blatantly censoring conservatives. A Biden Administration is unlikely to be able to legislate or regulate a change in content moderation any more than the Trump Administration. However, narrow but unified Democratic control will shift the agenda more in the direction of platforms taking more action against disinformation, a practice they appeared more willing to engage in relative to pandemic and election-related content as 2020 proceeded.

January 2021 Update – Spot on. There were no changes in the legal framework underpinning digital platform content moderation (more on that with Issue 2, below) and no meaningful changes in platform content moderation practices either. Biden and many Democrats continued calling for more aggressive content moderation, and vaccine “misinformation” was their top target in browbeating platforms. Yes, the largest platforms were pretty active, although they claimed to already be engaged. And the pressure campaign contributed to the partisan divide on the broader issue.

January 2020 — 8. Amazon Antitrust and Liability – Moderate Impact

Ironically, despite four years of repeated expressions of anger by President Trump aimed at the CEO of Amazon, federal antitrust authorities never moved forward on any concrete complaints. Although very narrow Democratic margins in Congress means that a major rewrite of US antitrust law is very unlikely, a number of leading Democrats have focused attention on a range of Amazon practices and President-elect Biden often used Amazon as his top example of corporate tax abuses. The ecommerce logistics giant may see itself more in regulatory and congressional crosshairs.

January 2021 Update – If anything, maybe Minimal Impact would have been more appropriate, with no major change in the trajectory of responses to Amazon’s allegedly anticompetitive practices. The naming of antitrust reform champion Lina Khan, who made her name critiquing Amazon, to be Chair of the Federal Trade Commission, seemed to send a clear message, but no major actions targeting Amazon have yet resulted.

January 2020 — 7. The DoJ’s Google Antitrust Case – Minimal Impact

The key point regarding Google’s antitrust issues is that they are thoroughly bipartisan. Change in partisan control won’t matter much. The Trump DoJ’s Google complaint, filed just before the election at a time when President Trump and other conservatives were aggressively criticizing the platform for alleged anti-conservative censorship, initially appeared partisan with support only from Republican State Attorneys General. However, three Democratic AGs joined in December. A separate complaint from 38 State AGs is thoroughly bipartisan. In short, don’t expect the Biden Administration to meaningfully change course.

January 2021 Update – Yep. The Department of Justice’s antitrust case targeting Google, filed by the Trump DoJ in 2020, spent 2021 creeping through the federal courts. The one small impact of Biden’s election was the addition of a few states led by the Democratic Attorneys General signing on to the case.

January 2020 — 6. TikTok, WeChat and China “Decoupling” – Major Impact

While a deep dive into the Trump Administration’s China policy reveals a real mixed bag, pressure to address strategic and domestic repression concerns became more dominant. The Trump Administration efforts to ban WeChat in the US and drive ByteDance to sell off the US operations of super-popular TikTok were unprecedented and a tied up in federal court. There are leading congressional Democrats who appear willing to aggressively challenge China, and the new Administration should be concerned with federal judges undermining the Executive Branch’s foreign policy and national security authority. However, it expect the very aggressive Trump Administration policy towards WeChat and TikTok to undergo a reset as the more traditionalist Biden Administration foreign policy team develops its overall China policy.

January 2021 Update – Again, pretty much as expected. The Biden Administration walked away from the unprecedented legal maneuvers of the Trump Administration aiming to shut down the operations of WeChat and force the sale of super-popular TikTok’s US operations. At the same time, the new Administration expressed concerns with a range of Chinese behaviors and initiated a multiagency effort to develop standards to review digital services originating from countries that pose national security concerns. That effort is apparently still underway.

January 2020 — 5. Google & Facebook Forced to Pay Media Companies – Minimal Impact

Efforts to extract payments from Facebook and Google to help media incumbents, led by France and Australia, and gaining steam globally, is not likely to slow down under a President Biden. Congressional Democrats have increasingly taken up the charge that the digital giants are unfairly harming traditional local media. Both Facebook and Google have created new programs that involve paying media enterprises to help turn down the heat. While federal legislation remains relatively unlikely, the Biden Administration also seems unlikely to pressure allies to turn down the heat on Google and Facebook. But would President Trump have defended the social media giants?

January 2021 Update – Yep. Google and Facebook are paying media companies more money. Australia and France continue to lead the forced media payments campaign. Most Democrats express sympathy for traditional media and include harming “local papers” among their criticisms of Big Tech. And the Biden Administration has not really engaged one way or the other.

January 2020 — 4. Regulating App Stores and Fees – Moderate Impact

2020 was not a good year for Apple (and Google) in terms of the pressure on their app store business models. Going into the year, Apple was the GAFA company facing the least antitrust criticism, but by year’s end, Apple’s App Store policies and fees were a top focus of competition regulators. Large app developers like Spotify and Epic Games are funding legal challenges and coalitions of smaller app developers globally. Google is also under fire, especially in Korea and India where Android is dominant. Legislation imposing meaningful new restrictions on platforms like Apple’s iOS and Google’s Android is unlikely in a Congress with such narrow Democratic control, but support for those policies are growing among Democrats and the Biden Administration’s FTC and DoJ are likely to press in that direction more aggressively.

January 2021 Update – This one probably should have been Minimal Impact. In short, the Biden Administration has not had a meaningful impact. In the US, the big news has been in the courts, with the private antitrust lawsuit pitting Epic Games against Apple leading the way. While Apple largely won that showdown, overseas the trends are unmistakably going in the other direction, especially in the EU with the Digital Markets Act and South Korea, with its app payments legislation. The Biden Team has largely sat those confrontations out, with occasional interjections to criticize discriminatory treatment of the US-based mobile OS companies leading to progressive pushback for seeming to side with tech giants.

January 2020 — 3. California AB 5 and Gig Workers as Employees – Moderate Impact

Implementation of California’s AB 5 was the top Gig Work platform issue of 2020. Widespread freelancer concerns stymied action in other states and overwhelming passage of California ballot initiative Prop. 22 exempting ridesharing and delivery platforms from AB 5 wrapped up the year. President Biden and Vice President Harris expressed unequivocal support for AB 5 and criticized digital work platforms, the opposite of the Trump Administration. Federal gig work legislation is likely off the table with such narrow Democratic control of the Congress. However, like with net neutrality, where FCC regulations shift back and forth when the White House shifts between Republicans and Democrats, expect a Biden Administration Labor Department to jump into overturning Trump Administration regulatory and labor enforcement policy on worker classification.

January 2021 Update – Spot on. When Biden Administration leaders mention Gig Work, they speak from the Labor talking points. But AB 5 – type reforms were dead in the water in 2021. The opposition of skilled freelancers, including writers, artists and other digital professionals, proving a major problem. However, as expected, the Biden Department of Labor did overturn the Trump DoL’s worker classification guidance that was friendly to independent contractor business models.

January 2020 — 2. Section 230 Repeal – Minimal Impact

Both Donald Trump and Joe Biden expressed support for eliminating Sec. 230, the cornerstone Internet platform liability provision. But like a microcosm of conservatives and progressive critics, they saw the problem from opposite sides. Candidate Biden and Democratic critics were repeatedly angered by what they saw as platforms not blocking misinformation, deceptions and hate speech. Conservatives saw the platforms censoring conservatives, too often under the guise of the concerns identified by Democrats. Don’t expect President Biden to solve that contradiction any more than Trump would. However, content moderation transparency remains a potential Sec. 230 middle ground, and if narrow Senate control and President Biden push to identify opportunities for true bipartisan cooperation towards incremental change, something building on the Schatz-Thune PACT Act in the Senate could emerge.

January 2021 Update – Yes, minimal impact. If anything, the fundamental divergence between angry Democrats, including President Biden, who want platforms to police content more aggressively, and angry Republicans, who see aggressive content moderation as veiled ideological censorship, got sharper. President Biden’s harsh criticism of platforms allowing vaccine misinformation to spread, which he linked to threatening Sec. 230, drove the partisan wedge deeper. Ironically, in federal court challenges to the social media company bans imposed on former President Trump, the Biden Administration defended Sec. 230.

January 2020 — 1. Digital Services Taxes (DST) – Major Impact

The global push to impose new taxes on large digital businesses was the top PEI issue in 2020 and could be the one most significantly impacted by the shift to a Biden Administration. Opposition to DSTs is bipartisan in Washington, but the Trump Administration was willing to engage in tariff trade wars with a level of enthusiasm unmatched in decades. While all sides have claimed to want a multilateral tax deal to avoid national DSTs, threats of retaliatory trade sanctions from the US keep pushing off the reckoning. Don’t plan on a Biden Administration that is looking to reinvigorate relationships with European allies to match the Trump Administration’s anti-DST intensity or trade war threats.

January 2021 Update – Definitely a Major Impact. The Biden Administration completely changed the game over DSTs and global corporate tax reform more broadly, shifting the US priority to ending tax havens by creating global support for a 15% minimum corporate tax. The resulting change of focus resulted in a massive two-part deal at the OECD that paired the new minimum tax with a tweaked DST that will shift tax revenues to countries based on where consumers reside for about 100 large multinationals, meaning more than just Internet businesses. If the OECD plan makes it through Congress, it will be a huge result for the Biden Administration.

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