How U.S. tech policy could change if Democrats win back the Senate

Venture BeatThis post was originally published by Khari Johnson at Venture Beat

Election Day in the U.S. is now only weeks away, and the variables and stakes are rapidly mounting. Troll farms, fake accounts, and other disinformation threats from within the United States and abroad are coming into view. The current president is attempting to convince people the election is rigged before it happens. Groups are actively working to suppress individuals’ constitutional right to vote, and Microsoft security researchers say China, Iran, and Russia have already attempted to gain access to the Biden and Trump presidential campaigns. Historic fires on the West Coast and historic hurricanes on the East Coast brought climate change into the race. Then on Friday, Supreme Court Justice Ruth Bader Ginsburg died.

Amid all that uncertainty — and reasons for anxiety — voters must consider a few statistically likely scenarios. Democrats are likely to retain majority control of the House of Representatives and are within three or four seats of capturing majority control of the U.S. Senate. And Democratic presidential candidate Joe Biden currently maintains a lead over President Donald Trump in the polls. If Democrats succeed in taking control of the legislative and executive branches of government, the shift could end a long-standing policy gridlock.

To get an idea of how Democratic control of Congress could influence tech policy, VentureBeat spoke with four people whose work centers on the politics, legislation, and regulation of technology.

  • Betsy Cooper leads the Aspen Tech Policy Hub, an incubator for software and policy that address societal issues.
  • Malkia Devich-Cyril is founder of Media Justice and lead writer of a surveillance tech policy platform for Black America.
  • Jevan Hutson is a lawyer, privacy advocate, and human-computer interaction researcher who proposed AI regulation law in the state of Washington.
  • Ernesto Falcon is a former Hill staffer and senior legislative counsel for the Electronic Frontier Foundation who follows legislation in California and Washington, D.C.

The last time Democrats gained control of the levers of power in Congress was in 2008, and the party advanced legislation like Obamacare, Wall Street reforms, and consumer finance protection regulations. This time, tech policy may be front and center, with issues like antitrust actions to reign in Big Tech companies and concern about the spread of facial recognition technology top of mind.

Broadband access

Nearly 20 million homes still lack access to high-speed internet. This issue has persisted for decades and stubbornly hangs on, in the same way getting electricity to every home was an issue a century ago. Pandemic lockdowns have revealed plainly that the nation’s aging infrastructure leaves tens of millions of people behind, especially those in rural areas and low-income neighborhoods. Access to technology can be tied to household income and correlated with race, according to a U.S. Census Household Pulse survey. Only one in three students around the world today is able to participate in distance learning online, according to UNICEF.

“I think this is going to be front and center next year,” Electronic Frontier Foundation senior legislative counsel Ernesto Falcon told VentureBeat in a phone interview. For years, he has urged Congress and state lawmakers in California to address broadband access concerns.

The House of Representatives passed a COVID-19 recovery bill called the Moving Forward Act with $80 billion in broadband infrastructure renewal funding, but the bill has not been taken up in the U.S. Senate. A bipartisan group in the U.S. Senate introduced the Rural Broadband Acceleration Act with $20 billion in funding, but that bill has made little progress since it was introduced in July.

Big Tech antitrust

As the United States slogs through the worst recession since the Great Depression of the 1930s, Big Tech companies reported record market caps, and a growing number of politicians are saying that’s the result of anticompetitive behavior. They argue the increasing wealth disparities point to a need to strengthen antitrust law for the modern age, and a lot of Americans agree. A poll released Thursday found that nearly two-thirds of American adults believe the power of Big Tech companies is a problem for the U.S. economy.

Betsy Cooper is director of the Aspen Tech Policy Hub. Spun out of the Aspen Institute, the group operates like a startup accelerator to quickly scale effective tech policy solutions. Participants in inaugural cohorts came from companies like Facebook and Google and include activists and government employees.

Early in the next session of Congress, Cooper expects Democrats to focus on enacting antitrust legislation to limit the power of Big Tech companies. This summer, CEOs of Amazon, Apple, Facebook, and Google appeared before Congress to explain why their companies’ respective monopolies do not lead to anticompetitive business practices. To conclude its investigation, the House Judiciary committee could release a final report this fall to determine whether the U.S. needs stronger antitrust laws. Attorney General William Barr is also expected to file charges in a federal antitrust case against Google in the coming weeks, according to people familiar with the matter who spoke with the New York Times.

Cooper said cybersecurity and AI regulation may also be addressed in legislation, but she questions how long Democrats will be able to maintain unity on tech issues after the election, given various factions within the party.

“A good proportion [of representatives are] interested in regulation, antitrust, and managing the ill effects of algorithms, but Big Tech also provides livelihoods in many Congressional districts, and so I expect the momentum for regulating would be less intense among some elected officials than has been expressed while the Democrats have been in the opposition,” she said. “And of course, it will all depend on the White House as well. If Trump wins reelection, he will not want to give Democrats a win in this (or any other) space.”

Malkia Devich-Cyril is founding director of Media Justice, an organization that has over the past two decades taken part in political fights ranging from disputes with Clear Channel and the digital divide to efforts to stop tech companies from peddling surveillance technology.

They think Democrats should move to restore net neutrality within the first 100 days of the next session of Congress and take steps to strengthen election security. They also expect antitrust legislation, although — like Cooper — Devich-Cyril questions the will of Democratic lawmakers to address antitrust issues after the election.

“The Democrats are no less likely to be supported by tech companies,” Devich-Cyril said. “Both parties have their hands in tech money, and so the question of how far will these legislative attempts go if they limit in any way profits to be made by tech companies — I don’t know the degree to which the government and private interests will continue to collude, if that’s a reasonable way of saying it.”

When asked if they worry the appetite to reign in Big Tech companies may fade away after the election, Devich-Cyril said they think the United States is a technocratic, white supremacist nation, no matter who runs Congress or the White House.

“I do think it will be a struggle,” they said, “but I think the possibility of victory exists there that does not exist now.”

Falcon testified in favor of antitrust law before lawmakers in the state of New York earlier this week. He believes antitrust action is needed to allow the U.S. to once again become a marketplace where startups can flourish and grow to maturity instead of being acquired by companies like Facebook and Google.

In virtually all of the six hearings Congress has held since June 2019, antitrust committee chair Rep. David Cicilline (D-RI) characterized a market in which competitors are inevitably acquired by Big Tech companies as an “innovation kill zone.” Multiple witnesses testifying before the committee stressed that if the government and Microsoft hadn’t reached an antitrust settlement in 2001, it’s possible companies like Amazon, Facebook, and Google wouldn’t exist today.

“These things still need to persist and move further because we are rapidly losing what made the internet a special open market, where anyone with a good idea can get something on the internet, and if it was viable, they could become a fairly successful product and a fairly successful business,” Falcon said. “Now the world is, you know, ‘Can you be bought by Google or Facebook?’ and that drives down innovation, that drives down competition, that drives down all of the possibilities and potential that you would unlock if you had a more competitive market.”

Election security and racial justice reform

Earlier this year, Devich-Cyril was lead writer on the surveillance tech portion of the Vision for Black Lives, a policy platform created by more than 50 Black community organizations. The group warns that surveillance is increasingly being treated as an alternative to incarceration and disproportionately targets people who are Black, Arab, Muslim, or immigrants — sometimes in violation of First, Fourth, and Fourteenth Amendment rights.

The platform calls for the elimination of surveillance tech such as facial recognition systems and tools for monitoring activity on social media platforms. It also recommends diverting funds currently used for surveillance to more pressing needs. And the platform calls for an end to automated oppression in areas essential to people’s economic outlook, including hiring, health care, and housing.

“These are primary contributors to the mounting cases of algorithmic injustice — instances where people are excluded from benefits and opportunities or subjected to unfair pricing, where they would otherwise be protected from intentional discrimination,” the platform reads.

The platform identifies the proposed Justice in Forensic Algorithms Act for government standards and review of algorithms as model legislation, as well as the existing Electronic Communications Privacy Act of 1986. To guarantee protections against voter suppression in our digital world, Devich-Cyril believes the John Lewis Voting Rights Act should include election security for the digital age and protections against disinformation on social media platforms.

“As we, for example, work to restore the Voting Rights Act, we need to consider that it’s now in a digital age and what are the provisions that we need to add to that bill to ensure remote protections and things like that? How do we protect the machines, like how do we secure the machines and assure their accuracy and privacy?” they said. “I think technologists and technology policy folks need to step into the question of elections in a new way.”

Prominent Democrats have pledged to support the John Lewis Voting Rights Act as an unofficial part of the party platform. The House passed a bill with greater voter protections in December 2019, but it has not been taken up by the Senate. The renewed effort is named after the Civil Rights icon and congressman who passed away earlier this year.

A VentureBeat review of the Biden platform and Democratic Party platform after the Democratic National Convention found policy to address algorithmic bias in areas like credit scores, but proposed changes to police powers and racial justice reform do not directly address surveillance.

Section 230 reform

It seems like every other day news from a former Facebook employee, anonymous source, or government regulator confirms the company’s inability to regulate itself and reveals that it can be a public menace.

The latest examples: In recent days, Facebook undermined emergency responders fighting historic wildfires in the western U.S. by spreading disinformation about Antifa activists starting fires. On Monday, a former Facebook employee who controlled fake account detection detailed how she influenced the political affairs of nations worldwide, and how within Facebook resources are devoted most heavily to moderating fake account activity in the U.S and Europe. And if Facebook had taken down an event page reported for violent threats, some assert it might have headed off the young man who killed two Black Lives Matter protesters in Kenosha, Wisconsin. On Thursday, Facebook took steps to curb internal debate about social issues.

It’s all enough for people to ask in the coming days whether Facebook should be dismantled, and others to advocate lawmakers take action. One potential action is Section 230 reform. Section 230 of the Communications Decency Act was written in the 1990s. Much of it was struck down by a judge shortly after its passage, but like broadband access, it’s a decades-old topic of debate. In short, the law shapes the modern internet economy and defines online speech. It also shields companies that define themselves as platforms so they can’t get sued based on how people use the service.

Democratic and Republican leaders of the House and Senate judiciary committees have expressed bipartisan agreement that the liability shield provided by Section 230 need to change. As it stands, Facebook and Google control online ad markets with little risk, while the creators of content Facebook and Google distribute assume the liability.

After Twitter put a warning label on a Trump tweet spreading lies about mail-in voting in May, the president retaliated by signing an executive order directing the FCC to make companies liable for what is said on their platforms.

Falcon from the Electronic Frontier Foundation (EFF) said he’s concerned that spats between President Trump and Twitter have “focused attention on all of the bad ideas of 230,” which he said fails to recognize that there may be a downside to an outright repeal of Section 230.

“Basically, everyone’s convinced that they’re [social media platforms] all censoring based on something,” he said, adding that social media platforms’ actions have fed mistrust among users. “I think the platforms have done that to themselves in the sense that they — especially I’d say some of the forums on Facebook — kind of pick favorites.”

Another challenge with Section 230 reform is that people don’t want governments to decide how to moderate social media platforms, but people don’t trust tech companies either. A Pew Research survey released last month found that a majority of U.S. adults believe companies censor political speech on social media platforms, a belief that jumps up to 90% among Republicans.

Because Section 230 deals with matters of liability protection and online speech, it’s a legal protection that involves misinformation, online advertising, and a range of issues Falcon said are “still fairly ripe.”

“All of the issues are playing out in real time [and] will migrate their way to next year and what to do there,” he said.

If the Biden-Harris ticket wins in November, online harms like revenge porn could also spur Section 230 reform. In the weeks ahead of her 2016 U.S. Senate race, then California Attorney General Harris filed charges against Backpage.com CEO Carl Ferrer, who defended himself on Section 230 grounds. One of the most tech savvy politicians to appear a U.S. presidential ticket in modern history, Harris has expressed opinions on a range of tech policy issues, from facial recognition to algorithmic bias and cybersecurity.

Comprehensive data privacy

The United States still lacks personal data privacy laws that would set ground rules for the way private companies treat data collected about individual consumers. General Data Protection Regulation (GDPR) in the European Union and the California Consumer Privacy Act (CCPA) in California are major steps toward strengthening such privacy protections.

Devich-Cyril says comprehensive data privacy reform is one type of legislation with a lot of bills on the table to draw inspiration from. The two most prominent in recent memory are the Consumer Online Privacy Rights Act (COPRA) and the Consumer Data Privacy Act (CDPA). The bills, put forward by Democrats and Republicans, respectively, protect privacy rights for individuals and grant more resources for Federal Trade Commission (FTC) regulators. A major difference between the two is that COPRA enshrines the private right of action, or the ability to sue an individual company like Facebook or Google when data privacy rights are violated on their platforms.

Jevan Hutson is a human-computer interaction researcher whose recent work explores the surveillance of people with HIV on tech platforms and  issues of privacy and security when sexting. As a tech ethics and policy attorney, he has advocated for the elimination of predictive policing and facial recognition. Hutson also argues for the elimination of notice and consent frameworks in which people are asked to sign Terms of Service agreements they don’t understand as a way to remove privacy liability.

“I think we’ll see a federal data privacy move, but my sneaking suspicion is once the Democrats have power, they have more free rein to pull right, so to speak. I’m not sure how much farther past COPRA they go,” Hutson said.

Earlier this year, while working with the University of Washington School of Law on tech policy, Hutson introduced the AI Profiling Act in the Washington state legislature. He witnessed Democratic majorities in the Washington state legislature fail to pass comprehensive privacy legislation akin to CCPA in California two years in a row.

“We have a supermajority in both our houses, and at the point where that’s true, more innovation-centric Democrats, which are a large group of people, have more power to push back for a more middle-of-the-road privacy bill, rather than one that’s more far-reaching that would include things like bans or more categorical ways of burden-shifting in technological environments,” he said.

“In our state [of Washington], what I’d say [is] we have a fairly progressive state legislature. Where those divisions were still quite stiff were in the House and the Senate, obviously; that’s why our state data privacy bill failed two years in a row.”

On the ballot in California this fall is Proposition 24, an initiative to amend CCPA and create the Privacy Protection Agency to enforce the state’s consumer data privacy laws. Whether that bill passes or not, Hutson expects such prominent state data privacy laws to influence data privacy legislation in Congress.

Enacting policy at the state level draws criticism for fragmenting the legal landscape, but Hutson says such policy is important because it presents alternatives to the solutions championed by powerful tech companies through national lobbyists, interest groups, or proposed legislation.

Falcon said part of the challenge with consumer privacy legislation is that many big tech companies make money from users’ personal information, and they’re unwilling to accept that the world has shifted in terms of what people expect in their interactions with internet commerce. Roughly eight in 10 American adults feel they have no control over their data, according to a 2019 Pew Research survey.

“People don’t feel like they have control, so Congress can only pass a law that makes people feel confident that they are regaining power when there’s some sort of some sort of accountability [for] things like mishandling information or using information in ways that you just did not agree to,” he said. “That exacerbates this frustration, and I think not enough legislators in Congress have [reached] the conclusion that the only path forward is real strong privacy law. Most of them, I think, are eager to set some bare minimum and try to settle the debate by saying ‘See, we did something,’ but it’s just unacceptable and unpalatable to people back home.”

Biometric privacy

Either as part of an overarching consumer privacy bill or as standalone facial recognition regulation, Congress could pass a bill that places limits on biometric data collection, such as data collected through facial scans or the voice recordings used to improve AI assistants like Alexa or Google Assistant. One of the only ways to challenge biometric data collection is through the Illinois’ Biometric information Protection Act (BIPA). Not only does BIPA allow people the right to sue tech companies in class action lawsuits, a judge ruled in 2019 that people don’t have to prove harm to file a BIPA lawsuit. BIPA is the reason Facebook is in the process of paying a $650 million settlement to users in Illinois, and it’s the basis of the ACLU’s suit against Clearview AI.

Last month, U.S. Senators Jeff Merkley (D-OR) and Bernie Sanders (I-VT) proposed a national law similar to BIPA. If Democrats win in November, Hutson said he expects to see legislation on baseline privacy, biometrics, and surveillance reform, but he questions how lobbying interests will affect the bills’ final form.

Democrats and Republicans often disagree over who should be held liable when things go wrong. It was an issue in COVID-19 recovery bills and consumer data privacy bills last fall and has returned with discussions around biometric data protections.

In other areas related to privacy and surveillance, Hutson said it’s unclear whether Democrats will respond to pressure to defang the Department of Homeland Security. There have been calls to abolish ICE since the government became infamous for putting children in cages. Those calls have been renewed in recent weeks following accusations of sexual assault at one facility and allegations of forced hysterectomies at another. On Thursday, ICE Inspector General Joseph Cuffari launched an investigation into the detention facility in Georgia, a day after more than 170 members of Congress signed a letter demanding he do so.

Facial recognition regulation

Legislation to address facial recognition misuse has sprung up in states across the U.S. over the past year. Laws that have passed or are being considered include:

In Washington, D.C., few members of Congress seemed to understand the concept of algorithmic bias just a few years ago. That’s no longer the case. A group of Democrats in the House and Senate have proposed a moratorium on facial recognition use by the federal government, one of multiple moratorium bills introduced this year. A bipartisan group of lawmakers in Congress previously supported limits on facial recognition to protect constitutional rights.

In industry, Amazon and Microsoft announced self-imposed moratoriums on sales of facial recognition to police, while IBM abruptly ended sales of the technology altogether. What’s unclear is how these moratoriums — or ongoing contracts between government agencies like ICE and facial recognition companies like Clearview — will influence regulation.

“I mean, the fact that all of these companies who had spent the past two years telling legislators ‘We can’t have a moratorium’ like the world’s going to end, like Washington State and innovation are going to end,” Hutson said. “Then it’s like, ‘Cool, you all just voluntarily did it? What were you talking about six months ago when we were having this exact conversation?’”

Final thoughts

Both presidential campaigns maintain that what’s at stake in the upcoming election is nothing less than the soul of America. Climate change, the economy, education, health care, social justice, and the future of democracy are on the line, but the party that controls Congress and the White House will also shape a long list of issues under the banner of tech policy. All of the policy professionals VentureBeat spoke to for this article said we’ll have to wait for the dust to settle after the election to get a clear picture of what the country’s next chapter of tech policy looks like.

But one thing is clear: The Democratic Party is no monolith. It contains individuals with progressive attitudes about protecting civil liberties and others with varying degrees of support for surveillance technology.

“Democrats are … going to be meeting in the middle,” Hutson said. “Because it’s not like we have a wave of civil libertarian Democrats taking over. I mean, I’m thankful for a lot of advocacy in the Progressive Caucus and other folks who have been pushing newer frameworks around tech policy that tend toward more than just notice and consent.”

Party unity seems reliable heading into the U.S. presidential election because most Democrats consider Donald Trump an existential threat to the future of the country. But after the election, factions and fractures are likely determine whether Congress takes on tech policy issues like privacy and racial justice reform and who is included in the burgeoning digital economy.

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This post was originally published by Khari Johnson at Venture Beat

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