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

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Photo of Cynthia Hogan courtesy Apple Insider

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.

Social Media

Twitter Takeover by Elon Musk Forces Conflict Over Free Speech on Social Networks

Transparency laws in Calif. and N.Y. are the ‘liberal’ counterpart to the ‘conservative’ speech laws in Texas and Florida.

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WASHINGTON, November 23, 2022 — As the Supreme Court prepares to hear two cases that may decide the future of content moderation, panelists on a Broadband Breakfast Live Online panel disagreed over the steps that platforms can and should take to ensure fairness and protect free speech.

Mike Masnick, founder and editor of Techdirt, argued that both sides of the aisle were attempting to control speech in one way or another, pointing to laws in California and New York as the liberal counterpoints to the laws in Texas and Florida that are headed to the Supreme Court.

“They’re not as blatant, but they are nudging companies to moderate in a certain way,” he said. “And I think those are equally unconstitutional.”

Censorship posed a greater threat to the ideal of free speech than would a law forcing platforms to carry certain content, said Bret Swanson, a nonresident senior fellow at the American Enterprise Institute.

“Free speech and pluralism, as an ethos for the country and really for the West, are in fact more important than the First Amendment,” he said.

At the same time, content moderation legislation is stalled by a sharp partisan divide, said Mark MacCarthy, a nonresident senior fellow in governance studies at the Brookings Institution’s Center for Technology Innovation.

“Liberals and progressives want action to remove lies and hate speech and misinformation from social media and the conservatives want equal time for conservative voices, so there’s a logjam gridlock that can’t move,” he said. “I think it might be broken if, as I predict, the Supreme Court says that the only way you can regulate social media companies is through transparency.”

Twitter’s past and current practices raise questions about bias and free speech

While talking about Elon Musk’s controversial changes to Twitter’s content moderation practices, panelists also discussed the impact of Musk’s rhetoric surrounding the topic more broadly.

“Declaring yourself as a free speech site without understanding what free speech actually means is something that doesn’t last very long,” Masnick said.

When a social media company like Twitter or Parler declares itself to be a “free speech site” is really just sending a signal to some of the worst people and trolls online to begin harassment, abuse and bigotry, he said.

That is not a sustainable business model, Masnick argued.

But Swanson took the opposite approach. He called Musk’s acquisition of Twitter “a real seminal moment in the history and the future of free speech,” and called it an antidote to “the most severe collapse of free speech maybe in American history.”

MacCarthy said he didn’t believe the oft-repeated assertion that Twitter was biased against conservatives before most Musk took over. “The only study I’ve seen of political pluralism on Twitter — and it was done by Twitter itself back when they had the staff to do that kind of thing — suggested that Twitter’s amplification and recommendation engines actually favored conservative tweets over liberal ones.”

Masnick agreed, pointing to other academic studies: “They seemed to bend over backwards to often allow conservatives to break the rules more than others,” he said.

Randolph May, president of The Free State Foundation, said that he was familiar with the studies but disagreed with their findings.

Citing the revelations from the laptop of Hunter Biden, a story that the New York Post broke in October 2020 about the Joe Biden’s son, May said: “To me, that that was a consequential censorship action. Then six months later before a congressional committee, [Twitter CEO] Jack Dorsey said, ‘Oops, we made we made a big mistake when we took down the New York Post stories.’”

Multiple possibilities for the future of content moderation

Despite his criticism of current practices, May said he did not believe platforms should eliminate content moderation practices altogether. He drew a distinction between topics subject to legitimate public debate and those posts that encourage terrorism or facilitate sex trafficking. Those kinds of posts should be subject to moderation practices, he said.

May made three suggestions for better content moderation practices: First, platforms should establish a presumption that they will not censor or downgrade material without clear evidence that their terms of service have been violated.

Second, platforms should work to enable tools that facilitate personalization of the user experience.

Finally, the current state of Section 230 immunity should be replaced with a “reasonableness standard,” he said.

Other panelists disagreed with the subjectivity of such a reasonableness standard. MacCarthy highlighted the Texas social media law, which bans discrimination based on viewpoint. “Viewpoint is undefined: What does that mean?” he asked.

“Does it mean you can’t get rid of Nazi speech, you can’t get rid of hate speech, you can’t get rid of racist speech? What does it mean? No one knows. And so here’s a requirement of government that no one can interpret. If I were the Supreme Court, I’d declare that void for vagueness in a moment.”

MacCarthy predicted that the Supreme Court would reject the content-based provisions in the Texas and Florida laws while upholding the transparency standard, opening the door, he argued, for bipartisan transparency legislation.

But to Masnick, even merely a transparency requirement would be an unsatisfactory result: “How would conservatives feel if the government said, ‘Fox News needs to be transparent about how they make their editorial decision making?’”

“I think everyone would recognize immediately that that is a huge First Amendment concern,” he said.

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 23, 2022, 12 Noon ET – Elon and Ye and Donald, Oh My!

With Elon Musk finally taking the reins at Twitter after a tumultuous acquisition process, what additional new changes will come to the world’s de facto public square? The world’s richest man has already reinstated certain banned accounts, including that of former president Donald Trump. Trump has made his own foray into the world of conservative social media, as has politically polarizing rapper Ye, formerly Kanye West, currently in the process of purchasing right-wing alternative platform Parler. Ye is no stranger to testing the limits of controversial speech. With Twitter in the hands of Musk, Parler in the process of selling and Trump’s Truth Social sort-of-kind-of forging ahead in spite of false starts, is a new era of conservative social media upon us?

Panelists

  • Mark MacCarthy, Nonresident Senior Fellow in Governance Studies, Center for Technology Innovation, Brookings Institution
  • Mike Masnick, Founder and Editor, Techdirt
  • Randolph May, President, The Free State Foundation
  • Bret Swanson, Nonresident Senior Fellow, American Enterprise Institute
  • Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Panelist resources:

Mark MacCarthy is a Nonresident Senior Fellow in Governance Studies at the Center for Technology Innovation at Brookings. He is also adjunct professor at Georgetown University in the Graduate School’s Communication, Culture, & Technology Program and in the Philosophy Department. He teaches courses in the governance of emerging technology, AI ethics, privacy, competition policy for tech, content moderation for social media, and the ethics of speech. He is also a Nonresident Senior Fellow in the Institute for Technology Law and Policy at Georgetown Law.

Mike Masnick is the founder and editor of the popular Techdirt blog as well as the founder of the Silicon Valley think tank, the Copia Institute. In both roles, he explores the intersection of technology, innovation, policy, law, civil liberties, and economics. His writings have been cited by Congress and the EU Parliament. According to a Harvard Berkman Center study, his coverage of the SOPA copyright bill made Techdirt the most linked-to media source throughout the course of that debate.

Randolph May is founder and president of The Free State Foundation, an independent, non-profit free market-oriented think tank founded in 2006. He has practiced communications, administrative, and regulatory law as a partner at major national law firms. From 1978 to 1981, May served as Assistant General Counsel and Associate General Counsel at the Federal Communication Commission. He is a past Chair of the American Bar Association’s Section of  Administrative Law and Regulatory Practice.

Bret Swanson is president of the technology research firm Entropy Economics LLC, a nonresident senior fellow at the American Enterprise Institute, a visiting fellow at the Krach Institute for Tech Diplomacy at Purdue University and chairman of the Indiana Public Retirement System (INPRS). He writes the Infonomena newsletter at infonomena.substack.com.

Drew Clark (moderator) is CEO of Breakfast Media LLC, the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Under the American Recovery and Reinvestment Act of 2009, he served as head of the State Broadband Initiative in Illinois. Now, in light of the 2021 Infrastructure Investment and Jobs Act, attorney Clark helps fiber-based and wireless clients secure funding, identify markets, broker infrastructure and operate in the public right of way.

Social media controversy has centered around Elon Musk’s Twitter, Ye’s new role in Parler, and former U.S. President Donald Trump

WATCH HERE, or on YouTubeTwitter and Facebook.

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 YouTubeTwitter and Facebook

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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Social Media

Trump’s Twitter Account Reinstated as Truth Social Gets Merger Extension

The merger, delayed by a federal probe, has left Truth Social without expected funding.

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Elon Musk next to a phone displaying the Twitter account of Donald Trump, who has said he will continue to post only on Truth Social.
Photo courtesy of Steve Jurvetson. Graphic by Em McPhie.

WASHINGTON, November 22, 2022 — Digital World Acquisition Corp. shareholders voted Tuesday to extend the Dec. 8 deadline for its merger with Truth Social, giving the platform a chance at survival as it faces financial and legal challenges.

The right-wing alternative social media platform championed by former President Donald Trump is currently under federal investigation for potential securities violations, which has delayed the merger and forced Truth Social to operate without $1.3 billion in expected funding.

The DWAC vote was delayed six times in order to raise the necessary support, with the company noting in a securities filing that it would be “forced to liquidate” if the vote was unsuccessful. Private investors have already withdrawn millions in funding.

Trump indicated on Truth Social in September that he was prepared to find alternative funding. “SEC trying to hurt company doing financing (SPAC),” he wrote. “Who knows? In any event, I don’t need financing, ‘I’m really rich!’ Private company anyone???”

Trump’s potential return to Twitter poses another risk for Truth Social

Meanwhile, under the new leadership of Elon Musk, Twitter reinstated Trump’s account, which was banned after then-Twitter executives alleged he stoked the January 6 riot at the Capitol. The reinstatement was made official after Musk asked in a public Twitter poll — which received around 15 million votes — whether he should allow the controversial former president back on the platform.

Trump’s potential return to Twitter could undermine Truth Social’s primary attraction, which could be another blow to the fledgling platform.

On Truth Social, the former president encouraged his followers to vote in the poll while indicating that he would not return to Twitter. But with 87 million followers on Twitter and fewer than 5 million on Truth Social, Trump may be tempted to make use of his newly reinstated account despite statements to the contrary, particularly in light of the official announcement of his 2024 presidential campaign.

The campaign could also allow him to bypass his agreement to first post all social media messages to Truth Social and wait six hours before sharing to other platforms. The agreement makes a specific exception for political messaging and fundraising, according to an SEC filing.

Musk’s decision to bring back Trump was one of many controversial decisions he’s made in his short tenure at the social media company — including a number of high-profile firings and the reinstatement of multiple formerly-banned accounts — which has led several major advertisers to pause spending.

Musk tweeted in October that he would convene a “content moderation council with widely diverse viewpoints” before making any “major content decisions or account reinstatements.” No such council has been publicly announced, and the Tweet appeared to have been deleted as of Tuesday.

Ye returns to Twitter while details of Parler acquisition remain uncertain

Trump’s reinstatement seems to have motivated at least one controversial figure to return to Twitter: Ye, formerly Kanye West, whose account was restricted in October after tweeting that he would go “death con 3 on JEWISH PEOPLE.” The restrictions were lifted prior to Musk’s acquisition of Twitter, but the rapper remained silent on the platform until Nov. 20.

“Testing Testing Seeing if my Twitter is unblocked,” he posted.

Right-wing social media platform Parler announced in October that Ye had agreed to purchase the company. Completion of the acquisition is expected by the end of December, but further details, including financial terms, have yet to be announced.

Twitter draws legislative attention, with changes to the social media landscape on the horizon

One of Musk’s first major changes to Twitter attempted to replace the existing verification system with a process through which anyone could pay $8 per month for a verified account. The initial rollout of paid verification sparked a swarm of accounts impersonating brands and public figures such as Sen. Ed Markey, D-Mass., who responded with a letter demanding answers about how the new verification process would prevent future impersonation.

Markey also co-signed a Nov. 17 letter written by Sen. Richard Blumenthal, D-Conn., asking the Federal Trade Commission to investigate Twitter for consumer protection violations in light of “serious, willful disregard for the safety and security of its users.”

Musk responded to the letter by posting a meme that mocked the senators’ priorities, but he later appeared to be rethinking the new verification process.

“Holding off relaunch of Blue Verified until there is high confidence of stopping impersonation,” Musk tweeted on Monday.

Other changes to the platform may be out of Musk’s hands, as state and federal legislators consider an increasing number of proposals for the regulation of digital platforms.

The Computer and Communications Industry Association released on Monday a summary of the trends in state legislation regarding content moderation. More than 250 such bills have been introduced during the past two years.

“As a result of the midterm elections, a larger number of states will have one party controlling both chambers of the legislature in addition to the governor’s seat,” CCIA State Policy Director Khara Boender said in a press release. “This, coupled with an increased interest in content moderation issues — on both sides of the aisle — leads us to believe this will be an increasingly hot topic.”

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Social Media

Twitter Loses Senior Officers, Gains White House and Federal Trade Commission Scrutiny

The current kerfufle isn’t the first time Twitter has had a run-in with the Federal Trade Commission.

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Screenshot of Katie Harbath, a fellow at the Bipartisan Policy Center

WASHINGTON, November 10, 2022 – Elon Musk’s Twitter is facing headwinds as the Federal Trade Commission and the broader administration of President Joe Biden signal scrutiny of the company, as the company’s former senior officers resign amid chaotic policy changes.

“We are tracking recent developments at Twitter with deep concern,” an FTC spokesperson said Thursday. “No CEO or company is above the law, and companies must follow our consent decrees. Our revised consent order gives us new tools to ensure compliance, and we are prepared to use them.”

And in a post-Election Day press conference on Wednesday, Biden generally signaled a tough stance against Musk.

Asked if Musk was “a threat to U.S. national security” and whether the federal government should “investigate his joint acquisition of Twitter with foreign governments, which include the Saudis,” Biden replied, choosing his words carefully:

“I think that Elon Musk’s cooperation and/or technical relationships with other countries is worthy of being looked at,” Biden said. “Whether or not he is doing anything inappropriate, I’m not suggesting that.  I’m suggesting that it [is] worth being looked at.  And — and — but that’s all I’ll say.”

Following up on her question, Jenny Leonard of Bloomberg asked “how,” and Biden replied, “There’s a lot of ways.”

Resignation by top Twitter officials

Thursday morning, Twitter’s now-former chief information security officer, Lea Kissner, stepped down in a Tweet. Basedon an internal company message, several outlets reported the same day that the platform’s chief compliance officer and chief privacy officer also quit.

According to The Verge, a Twitter attorney wrote the following on a company forum: “Elon has shown that his only priority with Twitter users is how to monetize them. I do not believe he cares about the human rights activists. the dissidents, our users in un-monetizable regions, and all the other users who have made Twitter the global town square you have all spent so long building, and we all love.”

Twitter’s woes don’t stop there. After Musk instituted a subscription-based verification badge, many fake accounts soon gained verification – including imposters claiming to be former President Donald Trump, former New York Mayor Rudy Giuliani, and basketball star LeBron James.

Nor is this Twitter’s only recent run-in with the FTC. In May, the watchdog ordered the platform to pay a $150 million penalty for alleged deceptive use of user data for advertising purposes.

 “I expect…a big increase in the number of whistleblower complaints and other things that people might be filing (against Twitter),” said Katie Harbath, a fellow at the Bipartisan Policy Center, on a web panel Thursday afternoon.

“[The FTC doesn’t] proactively put out statements regularly, so this is a pretty big deal today,” said moderator Rebecca Kern, a tech-policy reporter for Politico.

In September, Twitter’s former head of security, Peiter Zatko, testified before the U.S. Senate, alleging that the platform doesn’t adequately protect customer data and is vulnerable to meddling by foreign actors.

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