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.