Big Tech
Apple Gets a Foot in Joe Biden’s Door. What Will It Mean for Silicon Valley?

November 6, 2020 — With Twitter flagging and obscuring Donald Trump’s tweets on a daily basis, and with Facebook and other internet gatekeepers clamping down on pro-Trump vote conspiracy groups, one question looming over the final vote-count is: How will big tech fare during the next presidential administration?
If Joe Biden retains his narrow-but-leading vote totals in Pennsylvania, Georgia, Arizona and Nevada and secures the 270 presidential electoral votes necessary, Silicon Valley may breathe a sigh of relief. GOP populism has turned strongly against the tech industry’s biggest players.
But with renewed vigor behind antitrust enforcement among progressive Democrats, the question looms: How would President-elect Biden deal with the country’s increasing angst about the power of Facebook, Google, Amazon and Apple?
Some clues to answer that question may come from the role that Cynthia Hogan –former senior director of government affairs at Apple – played in the Biden campaign and may play in a Biden-Harris administration.
At the pinnacle of influence for Biden’s choice of Kamala Harris
Hogan, who became a lobbyist after leaving the Obama-Biden Administration, joined Apple in April 2016 and was the Cupertino-based tech giant’s top public policy official. (She also served briefly as the top lobbyist for the National Football League.)
Hogan resigned from Apple in April 2020 to become one of four members of the Biden’s committee vetting vice presidential candidates. She was the only non-politician on the group that included former Sen. Chris Dodd, D-Conn., Rep. Lisa Blunt Rochester, D-Del., and Los Angeles Mayor Eric Garcetti.
That committee, of course, picked Sen. Kamala Harris, who hails from Apple’s home state within Silicon Valley, California – and is considered much less of a trust-buster than others then considered for the slot, including Sen. Elizabeth Warren, D-Mass.
For decades, Hogan has been professionally close to Biden. Hogan was hired by then-senator Biden as a counsel in 1991. She soon became staff director and then chief counsel of the Senate Judiciary Committee when Biden was its chairman.
Long-time aide to Sen. Biden and Vice President Biden
Biden, of course, served in the Senate from 1973 until 2009, which he became Vice President under President Obama. Hogan was at Biden’s side for his major legislative achievements, being one of the chief architects of the 1994 Violent Crime and Control Act and the 1995 Violence Against Women Act.
And Hogan followed Biden to the White House, where she served as deputy assistant to the president and counsel to the vice president of. In that capacity, she advised on a broad range of domestic and foreign policy issues before the Obama administration, including health care, financial regulation, information technology, privacy and other civil rights, national security, and criminal justice.
She also managed all compliance, oversight, investigative matters, and litigation for the vice president. Special projects for the administration ranged from leading the effort to confirm Justice Sonia Sotomayor to the United States Supreme Court, to coordinating the administration’s proposals relating to gun violence, to conceiving and producing a public service announcement on teen dating violence.
Hogan’s role in public policy for Apple
During her time at Apple, Hogan was closely involved in tech policy issues including antitrust, privacy, net neutrality and Silicon Valley’s relationships with China.
She was also listed as a member of board of the Information Technology and Innovation Foundation until at least May 2020. Founded by centrist Democrat Rob Atkinson, ITIF has taken many pro-tech positions, and has voiced considerable skepticism at antitrust actions against big tech companies.
Understanding Hogan’s public policy positions and influence could be significant in predicting stances the Biden administration might take in approaching tech issues, including a possible rewrite of or greater enforcement of antitrust law, enacting changes to Section 230 of the Communications Decency Act, and reinstating net neutrality.
China
In November 2017, Politico reported that Apple defended removing its virtual private network from its app store in China, arguing that its presence in the country is helping to support the free flow of information.
Responding to concerns raised by Sens. Patrick Leahy, D-Vermont, and Ted Cruz, R-Texas, Hogan wrote: “We are convinced that Apple can best promote fundamental rights, including the right of free expression, by being engaged even where we may disagree with a particular country’s law.”

Photo of Cynthia Hogan, then at the National Football League, from Politico
Hogan said Apple removed certain VPN operators because they were not in compliance with Chinese law. Leahy and Cruz questioned these removals and said that VPNs enable internet users to access the uncensored version of the internet, including sites that are blocked by China’s policies.
Antitrust
Currently there is a significant movement to revisit existing antitrust laws in the United States, particularly by the House Judiciary Antitrust Subcommittee. Subcommittee members in October released a report highlighting what the subcommittee believes to be systematic failures allowing tech companies to amass to enormous sizes. Many want to reassess antitrust standards and clamp down on mergers.
The subcommittee’s report gives a good guide to what legislation may come from the House. These Democrats propose moving away from the consumer welfare standard, which has dominated antitrust law for decades, and taking a stricter hand with large conglomerate corporations.
Apple has thus far largely escaped the public scrutiny and criticism that have confronted Google, Facebook and Amazon. In October, the Trump Administration Justice Department filed an antitrust suit against Google, and the federal government and state attorneys general have said they are investigating Facebook, too.
Biden has made few appeals to anger against big tech on the campaign trail, and antitrust has been noticeably absent as a theme of the Harris-Biden campaign.
The Biden administration might continue to hew to the center on antitrust. And if big tech continues to have influence, that might blunt progressive cries to move away from the consumer welfare standard or to break up existing tech companies up. Changing that standard, tech companies and free market advocates charge, would ultimately hurt consumers.
Privacy
Apple has faced some concern during the past four years over the privacy and security of Face ID, although Apple has addressed most of them to emerge with the image as more pro-privacy than its Silicon Valley compatriots Google and Facebook.
When former Sen. Al Franken, D-Minn., questioned the company, “What steps did Apple take to ensure its system was trained on a diverse set of faces, in terms of race, gender, and age? How is Apple protecting against racial, gender, or age bias in Face ID?”, Hogan responded, according to Gizmodo: “The accessibility of the product to people of diverse races and ethnicities was very important to us. Face ID uses facial matching neural networks that we developed using over a billion images, including IR and depth images collected in studies conducted with the participants’ informed consent.”
Hogan continued, “We worked with participants from around the world to include a representative group of people accounting for gender, age, ethnicity, and other factors. We augmented the studies as needed to provide a high degree of accuracy for a diverse range of users. In addition, a neural network that is trained to spot and resist spoofing defends against attempts to unlock your phone with photos or masks.”
Section 230
Apple has been less enmeshed in controversies surrounding Section 230 of the Communications Decency Act than have Google, Facebook and Twitter. But Biden himself, in an interview with the New York Times editorial board in January, called for revoking Section 230.
And Harris supporting rolling back some aspects of the law: In 2018, Harris played a key role in advancing the Stop Enabling Sex Traffickers Act, which changes the rules governing safe harbor provisions shielding tech companies from being held liable for the content posted on their platforms.
Net Neturality
On the issue of net neutrality, a Biden administration and Silicon Valley seem to be on the same page. Hogan spoke out on the issue in a letter from Apple to the Federal Communications Commission in 2017. “Broadband providers should not block, throttle, or otherwise discriminate against lawful websites and services,” she urged.
Free Speech
Improved Age Verification Allows States to Consider Restricting Social Media
Constitutional issues leading courts to strike down age verification law are still present, said EFF.

WASHINGTON, November 20, 2023 — A Utah law requiring age verification for social media accounts is likely to face First Amendment lawsuits, experts warned during an online panel Wednesday hosted by Broadband Breakfast.
The law, set to take effect in March 2024, mandates that all social media users in Utah verify their age and imposes additional restrictions on minors’ accounts.
The Utah law raises the same constitutional issues that have led courts to strike down similar laws requiring age verification, said Aaron Mackey, free speech and transparency litigation director at the non-profit Electronic Frontier Foundation.
“What you have done is you have substantially burdened everyone’s First Amendment right to access information online that includes both adults and minors,” Mackey said. “You make no difference between the autonomy and First Amendment rights of older teens and young adults” versus young children, he said.
But Donna Rice Hughes, CEO of Enough is Enough, contended that age verification technology has successfully restricted minors’ access to pornography and could be applied to social media as well.
“Utah was one of the first states [to] have age verification technology in place to keep minor children under the age of 18 off of porn sites and it’s working,” she said.
Tony Allen, executive director of Age Check Certification Scheme, agreed that age verification systems had progressed considerably from a generation ago, when the Supreme Court in 2002’s Ashcroft v. American Civil Liberties Union, struck down the 1998 Child Online Protection Act. The law had been designed to shield minors from indecent material, but the court ruled that age-verification methods often failed at that task.
Andrew Zack, policy manager at the Family Online Safety Institute, said that his organization he welcomed interest in youth safety policies from Utah.
But Zack said, “We still have some concerns about the potential unintended consequences that come with this law,” worrying particularly about potential unintended consequences for teen privacy and expression rights.
Taylor Barkley, director of technology and innovation at the Center for Growth and Opportunity, highlighted the importance of understanding the specific problems the law aims to address. “Policy Solutions have trade-offs.” urging that solutions be tailored to the problems identified.
Panelists generally agreed that comprehensive data privacy legislation could help address social media concerns without facing the same First Amendment hurdles.
Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.
Wednesday, November 15, 2023 – Social Media for Kids in Utah
In March 2023, Utah became the first state to adopt laws regulating kids’ access to social media. This legislative stride was rapidly followed by several states, including Arkansas, Illinois, Louisiana, and Mississippi, with numerous others contemplating similar measures. For nearly two decades, social media platforms enjoyed unbridled growth and influence. The landscape is now changing as lawmakers become more active in shaping the future of digital communication. This transformation calls for a nuanced evaluation of the current state of social media in the United States, particularly in light of Utah’s pioneering role. Is age verification the right way to go? What are the broader implications of this regulatory trend for the future of digital communication and online privacy across the country?
Panelists
- Andrew Zack, Policy Manager, Family Online Safety Institute
- Donna Rice Hughes, President and CEO of Enough Is Enough
- Taylor Barkley, Director of Technology and Innovation, Center for Growth and Opportunity
- Tony Allen, Executive Director, Age Check Certification Scheme
- Aaron Mackey, Free Speech and Transparency Litigation Director, Electronic Frontier Foundation
- Drew Clark (moderator), Editor and Publisher, Broadband Breakfast
Panelist resources
- Utah Protecting Minors Online, State of Utah web site
- Opinion: Does Utah’s social media law respect teens’ rights?, Stephen Balkam, Deseret News
- Twitter thread by Taylor Barkley
- Good Digital Parenting Resources, Family Online Safety Institute
- Coming to Terms with Age Assurance, Family Online Safety Institute
- Making Sense of Age Assurance: Enabling Safer Online Experiences, Family Online Safety Institute
- Social Media and Minors, Center for Growth and Opportunity
- Clicks and Codes: Social Media Awareness Legislation in the States, Center for Growth and Opportunity
- What Should Policymakers Do about Social Media and Minors?, Center for Growth and Opportunity
- Internet Safety 101– Enough Is Enough’s designated website to educate, equip and empower parents and caregivers
Internet Safety 101 Downloadable Parent Quick Guides and Resources, Enough is Enough
- Rein In Big Tech, 30 second shararable clip from Enough is Enough
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Rein in Big Tech for the sake of our children, Donna Rice Hughes, Washington Times
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Treat Big Tech like Big Tobacco to protect our kids, Donna Rice Hughes, Fox News
- To Address Online Harms, We Must Consider Privacy First, Electronic Frontier Foundation
Andrew Zack is the Policy Manager for the Family Online Safety Institute, leading policy and research work relating to online safety issues, laws, and regulations. He works with federal and state legislatures, relevant federal agencies, and industry leaders to develop and advance policies that promote safe and positive online experience for families. Andrew joined FOSI after five years in Senator Ed Markey’s office, where he worked primarily on education, child welfare, and disability policies. Andrew studied Government and Psychology at the College of William and Mary.
Donna Rice Hughes, President and CEO of Enough Is Enough is an internationally known Internet safety expert, author, speaker and producer. Her vision, expertise and advocacy helped to birth the Internet safety movement in America at the advent of the digital age. Since 1994, she has been a pioneering leader on the frontlines of U.S. efforts to make the internet safer for children and families by implementing a three-pronged strategy of the public, the technology industry and legal community sharing the responsibility to protect children online.
Taylor Barkley is the Director of Technology and Innovation at the Center for Growth and Opportunity where he manages the research agenda, strategy, and represents the technology and innovation portfolio. His primary research and expertise are at the intersection of culture, technology, and innovation. Prior roles in tech policy have been at Stand Together, the Competitive Enterprise Institute, and the Mercatus Center at George Mason University.
Tony Allen a Chartered Trading Standards Practitioner and acknowledged specialist in age restricted sales law and practice. He is the Chair of the UK Government’s Expert Panel on Age Restrictions and Executive Director of a UKAS accredited conformity assessment body specialising in age and identity assurance testing and certification. He is the Technical Editor of the current international standard for Age Assurance Systems.
Aaron Mackey is EFF’s Free Speech and Transparency Litigation Director. He helps lead cases advancing free speech, anonymity, and privacy online while also working to increase public access to government records. Before joining EFF in 2015, Aaron was in Washington, D.C. where he worked on speech, privacy, and freedom of information issues at the Reporters Committee for Freedom of the Press and the Institute for Public Representation at Georgetown Law
Breakfast Media LLC CEO Drew Clark has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.
As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.
SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTube, Twitter and Facebook.
See a complete list of upcoming and past Broadband Breakfast Live Online events.
Antitrust
Premium Shipping and Anti-discounting Policies Central to FTC’s Amazon Lawsuit
The FTC may be able to convince the district court that Amazon is sustaining a monopoly markup, said Herb Hovenkamp.

WASHINGTON, October 20, 2023 –While the Federal Trade Commission may have a hard time proving that Amazon has monopolistic power, some of its policies could be construed as anticompetitive.
That was the message antitrust experts delivered on Tuesday at an Information, Technology and Innovation Foundation panel on the FTC’s lawsuit against the online retailer in U.S. District Court in Seattle, Washington.
The agency’s complaint argues that the Amazon exerts unlawful monopoly power by forcing third party sellers to fulfill orders on Amazon and by preventing third parties selling products on Amazon from charging lower prices on other platforms.
The first policy coerces third-parties to fulfill orders on Amazon in order to get the e-commerce giant’s premium two-day shipping, the FTC has argued.
The second policy, dubbed anti-discounting, can be used as a form of price control despite having pro-competitive benefits like discouraging free riding and encouraging investment, said Kathleen Bradish, president of the Antitrust Institute.
Because Amazon requires merchants to maintain a price point on its marketplace, it can create barriers to entry when other marketplaces cannot attract merchants to sell their products at a lower price, she said.
A debate about anti-discounting
Steve Salop, professor of antitrust law at Georgetown University, added that “what Amazon does is it has algorithms that scrape all the relevant websites and if it discovers that the merchant’s product is being sold at a lower price anywhere else it contacts the merchant and says [that it has to] lower the price to [Amazon] or raise the price to” the consumer.
Herb Hovenkamp, an antitrust professor at the University of Pennsylvania, said that anti-discounting policies “only work on a product-by-product basis.”
When you look at each product Amazon sells, there may not be anticompetitive power impacting each product, said Hovenkamp.
Amazon sells almost 12 million products on their e-commerce site and its individual market shares for all those products varies, he said. That means it is hard to argue that Amazon holds a monopoly for every product it sells.
Hovenkamp noted that while Amazon may succeed in areas such as streaming – which has no offline alternative – it struggles in “markets like try on clothing, tires, groceries…. Product by product, the question of how much competition Amazon faces from offline sellers varies immensely,” he said.
Bilal Sayyed, senior competition counsel at TechFreedom, a non-profit tech policy group, echoed this point: Anti-discounting policies can have anti-competitive consequences, but that they can also have pro-competitive benefits.
Sellers may not switch to other fulfillment companies because it does not make sense to do so given the “scale that Amazon has,” Bradish said, even if they prefer to use another e-commerce platform. But she acknowledged that having witnesses testify that those policies have impacted their behavior could favor the FTC’s point.
The role of Amazon’s fulfilment services
Amazon’s fulfillment services apply to several products it sells. But the FTC will need to demonstrate that monopoly prices are a result of those fulfillment services, said Hovenkamp.
“The hard part is going to be for the FTC to convince the fact finder that that’s a grouping of sales that’s capable of sustaining a monopoly markup,” he added. “It may be able to do that.”
While a large-scale operation like Amazon might have a cost advantage with fulfillment services, monopoly power will have to be determined by a finding of fact, he said.
By contrast, Sayyed argued that there is a clear pro-competitive justification for sellers using Amazon’s fulfillment services. That comes from the company’s reputation for quickly delivering goods to consumers.
“This idea that parties should be able to take advantage of the platform and the Amazon brand, but then [sell] their merchandise [through] a third party that may or may not meet the same fulfillment and delivery standards, really strikes me as very dangerous ground for the agency” to argue, said Sayyed.
Antitrust
FTC Chair Warns Artificial Intelligence Industry of Vigorous Enforcement
The FTC’s statute on consumer protection that ‘prohibits unfair deceptive practices’ extends to AI, said Kahn.

WASHINGTON, October 2, 2023 – The chair of the Federal Trade Commission warned the artificial intelligence industry Wednesday that the agency is prepared to clamp down on any monopolistic practices, as she proposed more simplistic rules to avoid confrontation.
“We’re really firing on all cylinders to make sure that we’re meeting the moment and the enormous and urgent need for robust and vigorous enforcement,” Lina Khan said at the AI and Tech Summit hosted by Politico on Wednesday.
Khan emphasized that the FTC’s statute on consumer protection “prohibits unfair deceptive practices” and that provision extends to AI development.
The comments come as artificial intelligence products advance at a brisk pace. The advent of new chat bots – such as those from OpenAI and Google that are driven by the latest advances in large language models – has meant individuals can use AI to create content from basic text prompts.
Khan stated that working with Congress to administer “more simplicity in rules” to all businesses and market participants could promote a more equal playing field for competitors.
“It’s no secret that there are defendants that are pushing certain arguments about the FTC’s authority,” Khan said. “Historically we’ve seen that the rules that are most successful oftentimes are ones that are clear and that are simple and so a regime where you have bright line rules about what practices are permitted, what practices are prohibited, I think could provide a lot more clarity and also be much more administrable.”
Khan’s comments came the day before the agency and 17 states filed an antitrust lawsuit against Amazon, which is accusing the e-commerce giant of utilizing anticompetitive practices and unfair strategies to sustain its supremacy in the space.
“Obviously we don’t take on these cases lightly,” Khan said. “They are very resource intensive for us and so we think it’s a worthwhile use of those resources given just the significance of this market, the significance of online commerce, and the degree to which the public is being harmed and being deprived of the benefits of competition.”
Since being sworn in 2021, Khan’s FTC has filed antitrust lawsuits against tech giants Meta, Microsoft, and X, formerly known as Twitter.
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