Impact of Biden Presidency

How does the election of Joe Biden as the 46th President of the United States impact the top digital public policy issues in 2021? The following ten issues were the most active in 2020 based on the PEI daily updates. For each, we project Minimal, Moderate or Major Impact compared to what more years of President Trump would have meant. (Projections are based on a likely 50-50 Senate giving “control” to the Democrats but with the Senate operating under relatively traditional rules.)

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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