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.
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.”
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.
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.
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.”
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.
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.
Washington’s Antitrust Push Could Create ‘Chilling Effect’ on Startups, Observers Say
There is concern that an FTC focused on ‘big is bad’ will stunt economic growth in the future.
WASHINGTON, September 23, 2021 – Advocates for less government encroachment on big technology companies are warning that antitrust is being weaponized for political ends that may end up placing a “chilling effect” on innovative businesses.
The Institute for Policy Innovation held a web event Wednesday to discuss antitrust and the modern economy. Panelists noted their concern that antitrust law may be welded with political aims that will ultimately create a precedent whereby the federal government will stifle innovators who get too big.
Jessica Melugin, the director of the Center for Technology and Innovation, said technology companies could see what’s happening in Washington – with lots of talk of breaking up companies deemed too big – and be uncertain of the future.
She noted that growing companies largely seek one of two things to make it big: grow to file an initial public offering, where the company’s shares are publicly traded, or wait until a large company buys you out. She said talk emanating from the White House and Washington generally about regulating the industry could deter larger companies from acquiring them, and onerous financial regulations could put a damper on IPO dreams.
“If you start robbing companies of other smaller companies they purchased, it’s going to give a lot of entrepreneurs and a lot of funders in Silicon Valley pause,” Melugin said. “If another path to success gets blocked – the IPO is now harder, and now acquisitions are a little bit questionable…that’s a chilling effect.”
President Joe Biden has made a number of appointments to key positions that is bringing more attention on Big Tech, including known Amazon critic Lina Khan to chair the Federal Trade Commission, which recently filed an amended case against Facebook for alleged anticompetitive practices. He also appointed antitrust expert and Google critic Jonathan Kanter as assistant attorney general in the Justice Department’s antitrust division.
FTC could set a bad precedent if focus is ‘big is bad’
Christopher Koopman, the executive director at the Center for Growth and Opportunity at Utah State University, said he’s concerned about the precedent Khan could set for big companies.
He said the odds are that once Khan starts, she will continue down “this path of ‘big is bad’ because that’s a prior that she has and she’s continued to operate on her entire professional career. It just so happens that the focus of this is on tech companies.
“We may be building a regulatory apparatus that will continue to burrow a hole right down the middle of the American economy before we even have a chance to ask if that’s really what we want,” Koopman added. “We just have to recognize that it doesn’t matter, really, who is running the FTC – once we tell the FTC to go break up big companies, they’re going to go break up big companies.”
And the concern for Carl Szabo, vice president and general counsel of lobby group NetChoice, which advocates for less government regulation on the future of technology, is not just a domestic problem, but an international one, too.
“I really do worry about us shanking our innovation and essentially giving a free kick to our competitors and that seems to be what we’re doing,” Szabo said. “Right now, we lead the world.
“This is an international issue, this is a national issue, and we really need to – whether Conservative or Democrat – as Americans we need to see the forest from the trees. And if we want to put corporations ahead of competitors and think those are good democratic values, go ahead and do it.
The House has before it six antitrust bills targeting big technology companies, which passed the chamber’s judiciary committee in June. The goal of the bills is to rein in the power of Big Tech through new antitrust liability provisions, including new merger and acquisition review, measures to prevent anticompetitive activity, and providing government enforcers more power to break-up or separate big businesses.
Federal Communications Commissioner Brendan Carr said earlier this year that Big Tech has too much influence and power, citing the ability of Apple and Google to remove applications like controversial chat website Parler from its app stores. Carr recently recommended that Big Tech contribute to the Universal Service Fund, which supports broadband expansion in low-income and rural areas of the country, because these companies benefit from broadband.
Tread Carefully on Tech Platform Data Portability, Conference Hears
Politico panel debates merit of allowing tech platform users to migrate data freely.
WASHINGTON, September 23, 2021 – Panelists debated Monday the merits of forcing companies to allow users to migrate their data from one platform to another, with some lauding the proposal and others cautioning Congress not to stifle innovators by taking a blanket approach.
The Politico Tech Summit hosted a panel discussing legislation before the House – H.R. 3849 – that would force companies to allow users to move their data from one platform to another. The idea behind the concept of data portability is to instigate competition by reducing the barrier for users to use other services that they would otherwise avoid because they cannot take their contacts, connections, and photos with them to the new platform.
Experts say such a portability mandate would be welcomed by younger internet platforms that are competing to grow their networks, but admonished by larger firms like Facebook and TikTok, who would argue that they grew their networks organically and don’t wield any uncompetitive pressures by keeping their networks private.
“[Anti-trust legislation] is really about opening up markets for innovative competitors to enter,” said Charlotte Slaiman, competition policy director for public interest group Public Knowledge.
“Network effects are very powerful in many of these dominant digital platforms. Network effects means it’s very difficult for a person to leave a network. Even if you’re upset with Facebook, you don’t want to leave because of your one thousand connections or whatever.
“If you think about it from the perspective of an entrepreneur, they’re facing this problem times a million users,” Slaiman added. “The sources of funding know it, the venture capitalists know…interoperability is about addressing those network effects.” Interoperability is the extent to which a platform’s infrastructure works with others, which can facilitate data portability.
And more competition is emerging in the online platform space. For example, sites like Parler and Vero have emerged as social networking alternatives to the likes of Facebook, while video sites like Rumble and Locals have emerged as alternatives to YouTube.
Slaiman argues that platforms should compete on the features and user experiences they offer, not on owning a pool of users and profiles.
Slaiman testified similarly before the Senate Judiciary Committee’s Subcommittee on Competition Policy, Antitrust, and Consumer Rights on Tuesday.
Caution for portability legislation
Zach Graves, head of public policy for the think tank Lincoln Network, said there are a lot of cases where mandated portability “makes a lot of sense.
“If you look at the telecom context, you know the fact that you can take your phone number and port it to a different carrier. But we should approach this with caution. There are tradeoffs… I think there’s sort of a category error in how they’re constructing this that big is bad and that’s how we should regulate it,” he said.
“I would prefer a more sector specific approach,” Graves added. “If we’re talking about online retail, we should regulate online retail. If we’re talking about online ads, we should regulate online ads. The fact that we’re saying these companies are big and we should scrutinize them and give them a special framework I don’t agree with.”
Steve DelBianco, CEO of lobby group NetChoice, which pushes for a tech future free from onerous government regulation, was more blunt.
“The interoperability mandate will be a disaster for competition, for privacy and for data security,” he said. “There’s a complete difference between phone number portability and data portability compared to having interoperability where you open a hole into your application which means that any competitor can see data that violates your own privacy requirements. [That creates] security problems.
“People can join multiple social networks at the same time. The theory of network effects really falls down on this.”
Repealing Section 230 Would be Harmful to the Internet As We Know It, Experts Agree
While some advocate for a tightening of language, other experts believe Section 230 should not be touched.
WASHINGTON, September 17, 2021—Republican representative from Colorado Ken Buck advocated for legislators to “tighten up” the language of Section 230 while preserving the “spirit of the internet” and enhancing competition.
There is common ground in supporting efforts to minimize speech advocating for imminent harm, said Buck, even though he noted that Republican and Democratic critics tend to approach the issue of changing Section 230 from vastly different directions
“Nobody wants a terrorist organization recruiting on the internet or an organization that is calling for violent actions to have access to Facebook,” Buck said. He followed up that statement, however, by stating that the most effective way to combat “bad speech is with good speech” and not by censoring “what one person considers bad speech.”
Antitrust not necessarily the best means to improve competition policy
For companies that are not technically in violation of antitrust policies, improving competition though other means would have to be the answer, said Buck. He pointed to Parler as a social media platform that is an appropriate alternative to Twitter.
Though some Twitter users did flock to Parler, particularly during and around the 2020 election, the newer social media company has a reputation for allowing objectionable content that would otherwise be unable to thrive on social media.
Buck also set himself apart from some of his fellow Republicans—including Donald Trump—by clarifying that he does not want to repeal Section 230.
“I think that repealing Section 230 is a mistake,” he said, “If you repeal section 230 there will be a slew of lawsuits.” Buck explained that without the protections afforded by Section 230, big companies will likely find a way to sufficiently address these lawsuits and the only entities that will be harmed will be the alternative platforms that were meant to serve as competition.
More content moderation needed
Daphne Keller of the Stanford Cyber Policy Center argued that it is in the best interest of social media platforms to enact various forms of content moderation, and address speech that may be legal but objectionable.
“If platforms just hosted everything that users wanted to say online, or even everything that’s legal to say—everything that the First Amendment permits—you would get this sort of cesspool or mosh pit of online speech that most people don’t actually want to see,” she said. “Users would run away and advertisers would run away and we wouldn’t have functioning platforms for civic discourse.”
Even companies like Parler and Gab—which pride themselves on being unyielding bastions of free speech—have begun to engage in content moderation.
“There’s not really a left right divide on whether that’s a good idea, because nobody actually wants nothing but porn and bullying and pro-anorexia content and other dangerous or garbage content all the time on the internet.”
She explained that this is a double-edged sword, because while consumers seem to value some level of moderation, companies moderating their platforms have a huge amount of influence over what their consumers see and say.
What problems do critics of Section 230 want addressed?
Internet Association President and CEO Dane Snowden stated that most of the problems surrounding the Section 230 discussion boil down to a fundamental disagreement over the problems that legislators are trying to solve.
Changing the language of Section 230 would impact not just the tech industry: “[Section 230] impacts ISPs, libraries, and universities,” he said, “Things like self-publishing, crowdsourcing, Wikipedia, how-to videos—all those things are impacted by any kind of significant neutering of Section 230.”
Section 230 was created to give users the ability and security to create content online without fear of legal reprisals, he said.
Another significant supporter of the status quo was Chamber of Progress CEO Adam Kovacevich.
“I don’t think Section 230 needs to be fixed. I think it needs [a better] publicist.” Kovacevich stated that policymakers need to gain a better appreciation for Section 230, “If you took away 230 You would have you’d give companies two bad options: either turn into Disneyland or turn into a wasteland.”
“Either turn into a very highly curated experience where only certain people have the ability to post content, or turn into a wasteland where essentially anything goes because a company fears legal liability,” Kovacevich said.
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