Deep Dive Episode 154 – Tech Policy Under the Biden Administration and 117th Congress

In this episode, an expert panel looks at what the new year may bring regarding the hot topics of tech policy. Some key policy debates – such as antitrust and “Big Tech,” online speech and Section 230, and the race to 5G – are likely to continue, but what other tech policy conversations may arise? And how might the approach to regulation of the new presidential administration and Congress impact innovation and the tech industry?

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Transcript

Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker. 

 

Jack Derwin:  Hello, and welcome to The Federalist Society’s Fourth Branch Podcast for the Regulatory Transparency Project. My name is Jack Derwin, and I’m Assistant Director of RTP at The Federalist Society. 

 

As always, please note that all expressions of opinion are those of the guest speakers on today’s call. If you would like to learn more about any of our speakers today, you can visit www.regproject.org to view their full bios. After opening remarks and a discussion between our panelists, we will go to audience Q&A, so please be thinking of any questions you’d like to ask the speakers. 

 

Today, we’re pleased to host a conversation on “Tech Policy Under the Biden Administration and 117th Congress.” To discuss the topic, we’re happy to feature Jennifer Huddleston, Blake Reid, and our moderator, Adam Thierer. Adam, who will introduce our other two speakers in a moment, is a Senior Research Fellow at George Mason University’s Mercatus Center. He specializes in innovation, entrepreneurialism, the internet, and free speech issues with a particular focus on the public policy concerns surrounding emerging technologies.

 

And with that, Adam, the floor is yours.

 

Adam Thierer:  Well, thank you, Jack. I really appreciate that introduction, and I want to welcome everyone to today’s live Federalist Society podcast on “Tech Policy Under the Biden Administration and 117th Congress.” For today’s event, I’ll be engaging in a discussion with two leading tech policy lawyers who’ve written extensively on the most pressing issues of the day, ranging from broadband and FCC policy to antitrust content moderation issues, from privacy to copyright, and much more. Those are just a few of the things we’ll be discussion on today’s show.

 

Joining me for this conversation today is Jennifer Huddleston, who is Director of Technology & Innovation Policy at the American Action Forum where her research focuses on the intersection of emerging technology and law. Jennifer is also a former colleague of mine at the Mercatus Center. Hello again, Jennifer.

 

Jennifer Huddleston:  Thanks for having me today, Adam.

 

Adam Thierer:  Sure. And also joining is today is Blake Reid. Blake is a Clinical Professor at the University of Colorado Law School where he studies and writes about law, policy, and technology. He also serves as the Director of the Technology Law & Policy Clinic there, and he’s also a faculty director at Silicon Flatirons Center. Hi, Blake. Welcome.

 

Prof. Blake Reid:  Morning, Adam. Good to be here.

    

Adam Thierer:  Yeah. So let’s get started by taking a brief look back first before taking a hard look at what might happen down the road in 2021. So 2020, a sleepy year. Nothing much happened.

 

[Laughter]

 

Actually, Time magazine recently just declared that 2020 was, quote, “the worst year ever.” Now, I’m not sure if by historical standards that’s quite right. The years 1918 and 1942 probably would like to have a word with those Time editors, but I think it’s safe to say that the headline “Worst Year Ever” certainly fits for America’s tech sector. 

 

This was the year where the so-called techlash really hit, and hit with a vengeance. Criticisms flew from every corner of the political spectrum, and legislative and regulatory proposals multiplied faster than our ability to even inventory them all. And yet, as 2020 comes to a close, not a lot of that has actually gotten done. There has been a lot of huffing and puffing, and we have yet to see really, though, how this techlash translates into actual law or regulation. 

 

So that leads to our discussion of 2021 and the new administration of President-elect Joe Biden. To structure our chat, I’ve divided our discussion into six crucial issues and questions that I’m going to ask about. But first, let me ask our guests to offer some high-level, general thoughts to open up about where we stand as this tumultuous political year comes to a close and we begin this with a new administration and a still somewhat uncertain situation in Congress. 

 

Blake Reid, let me turn to you and ask you to begin on this point before we go to Jennifer. Blake?

 

Prof. Blake Reid:  Yeah, as we’re trying to think about how to predict what’s going to happen in 2021, we have to deal with the looming uncertainty. I think, obviously, one big piece of that uncertainty is what’s going to happen in the Senate. Are we going to have a 50/50 Senate where the Dems will have a nominal edge, or are the Republicans going to continue to hold the chamber? 

 

I think that’s also — there’s a second order question there, which is in either of those situations, to what extent are the Dems going to step up and match Mitch McConnell’s willingness to play political hardball? So just for example, if Mitch McConnell plans to hold the nomination of the new FCC Chair, are the Dems going to do things like shut down the agency, shut down equipment authorizations, and spectrum licensing, and who knows what else? Or are they going to let Mitch McConnell do that? Will Mitch McConnell, given his relationship with President Biden, turn over a new leaf and start acting differently? So I think those are big questions. 

 

And maybe one other just quick uncertainty I’ll note is the Republican judicial orthodoxy or conservative judicial orthodoxy on all these issues has traditionally been in the vein of less regulatory state, broader understandings of the First Amendment, fairly narrow conceptions of antitrust law. And one really interesting aspect of the techlash in the last year has been just the complete transformation of what I think is sort of Republican orthodoxy or conservative orthodoxy on all of those issues. 

 

And so I think as we think about any of these things, whether it’s Section 230 reform, the antitrust cases, what the FCC does, all heading up to judicial review by both a number of Trump appointees in the appellate courts and the Supreme Court, we actually have some issues in which what the Court is going to do is pretty unclear and pretty hard to predict at this point.

 

Adam Thierer:  Yeah, good points. Jennifer, any thoughts on what Blake had to say about the general outlook for the coming year?

 

Jennifer Huddleston:  I think that when you’re looking at the Senate, it’s clear that whatever happens in Georgia, you’re going to have a very closely divided Senate. What that means for technology policy is that you’re probably going to see less movement around some of the issues that are more divisive where there’s not either bipartisan agreement or even agreement within a single party on how to address those issues. That does not mean we won’t see bills introduced on those topics but that you probably won’t see those bills turn into legislation. I do think, though, that we’re starting to get a good idea of where the administrative state could be heading, as well as what the role of states may be in terms of this techlash. 

 

As Blake mentioned, it’s been really interesting even in the last 48 hours to see what’s happened in that we’ve had two new antitrust cases filed at a state level by two different groups of attorney generals, one that would be led by the Colorado Attorney General and tends to have more Democrats on it against Google, and another led by the Texas Attorney General, also filed against Google. 

 

Again, as Blake was mentioning, it’s very interesting to note there because traditionally we haven’t seen Republicans criticizing the consumer welfare standard. We haven’t seen the use of antitrust as this kind of tool to accomplish other policy goals for which it is ill suited. But now we are seeing these cases emerge from various different quadrants of the parties, and so I think regardless of what happens on the legislative side, that as well as some other areas of tech policy that are governed more by the FCC and the FTC and what could happen through executive order are more likely to see movement in the immediate first days of the Biden administration and the 117th Congress.

 

Adam Thierer:  Right, right. Good. Well, I’m going to have a couple of follow-ups on antitrust matters in a moment, but first let me ask you about the law that everybody seemingly loves to hate, which is Section 230. In a world where people complain about politicians not agreeing on anything, there seems to be a bipartisan lovefest in opposition to Section 230. What’s most interesting about that and all of the arguments we’ve heard over the past year about reforming or gutting 230 is that Republicans and Democrats seem to come at this from very different perspectives as to why they have problems with Section 230. 

 

So I’ll turn back to you, Jennifer, to kick this off. With the year ending and with the flurry of bills we’ve seen to tweak or perfect 230 in some way, does this get done in 2021? Do we finally see some bipartisan agreement of some sort, even though they don’t seem to agree about how to go about it? It seems like both sides want to do something about 230, right?

 

Jennifer Huddleston:  You’re right in that we’ve seen an increasing amount of criticism from both the left and the right on Section 230. From the right, we’ve seen President Trump be very critical of the law, but we’ve also seen a lot of different proposals in Congress, things like removing “otherwise objectionable” to giving the FTC power to enforce neutrality to carveouts for Section 230 for any number of activities online modeled after the FOSTA-SESTA bill. 

 

In general, though, many of the criticisms on the right have been alleging that the companies are engaging in too much moderation, that they are removing content that should have been allowed to stay up. What’s concerning in some cases is that these criticisms are not necessarily about Section 230 but tend to be possibly criticisms of free speech and of the platforms themselves. 

 

When it comes to criticisms from the left, I think it’s important to point out that President-elect Biden himself at one point also called to revoke Section 230 or put forth a good amount of criticism of this. We’ve seen this criticism from Speaker Pelosi of Section 230. The criticisms tend to be more about a view that the companies don’t have enough incentive to engage in certain types of moderation, that there’s too much hate speech or misinformation online, and that there needs to be a bigger stick to encourage the companies to engage in more moderation. 

 

So far, we have seen that Congress is pretty divergent when it comes to those two ideas, given that one would require more moderation and one would require less. That being said, I do think there are concerns that in this growing sense of the need to do something that Section 230 has become the poster child, rightly or wrongly, for whatever ails a particular policymaker about what they are seeing online. 

 

And I think as we approach this debate, it’s important to remember those principles that underly Section 230, that Section 230 was about enabling platforms to carry user-generated content and holding the person who said something liable rather than those platforms, that it reflects these basic principles, and that is also is about enabling platforms to make different choices about content moderation so that platforms don’t have to be one size fits all, that you can have platforms that serve different audiences and allow those audiences to have a voice in a way that they might not have in a traditional top-down media approach. And that’s been an incredible advantage for a wide range of voices across the political spectrum. 

 

Adam Thierer:  Right, I think that’s a fair point. And Blake, as I turn to you, let me ask you to comment on is there some sort of formula you can envision whereby there is a bipartisan agreement to do something about 230 and what that something is? We should remind our listeners that, of course, Section 230 came about because of a bipartisan agreement, an effort led by a Republican and a Democrat, Representatives Cox and Wyden. So does it happen this year? If so, how does it happen in this Congress?

 

Prof. Blake Reid:  I tend to agree with Jennifer here. I think the rumors of bipartisan consensus here are a little bit overrated in the sense that to the extent there is a coherent problem diagnosis that anyone advancing these bills has, it looks very different for the Republicans and the Democrats. Likewise, the interventions to do something to 230 are looking quite different. 

 

Nevertheless, 230 has become this vessel into which everyone’s angst, problems with, concerns about the biggest platforms, some of which, I might add, I think are quite legitimate and speak to some very serious problems over which there’s good arguments that the platform should bear some responsibility for. There’s so much energy being put into 230, including from people that don’t really even understand or are not speaking honestly about how 230 even works or what 230 does that we may cross that line where there’s just this political imperative to do something. 

 

I am not sure what that looks like. The mechanics of the bills we’ve seen have ranged so wildly. If I had to guess, maybe we end up with something that imposes some due process requirements on platforms and some transparency requirements that say, “You need to be more upfront with your users about the kinds of moderation practices that you engage in,” and perhaps, “If you depart from those moderation practices, we’re going to withhold Section 230 protections.” 

 

Maybe there is enough energy to get a bill like that across the finish line, but I think there’s also a solid chance that the very different root problems that folks are going after and the very different approaches that folks have to solving those problems are going to scuttle any progress towards any kind of reform legislation.

 

Adam Thierer:  Yeah, I think that’s right. I think a lot of the 230 debate has been partially just an intimidation exercise of a lot of people beating their chest in Congress.

 

Prof. Blake Reid:  Yeah, it’s just jawboning on something.

 

Adam Thierer:  Yeah, jawboning. That’s exactly it. 

 

Jennifer Huddleston:  The regulation by raised eyebrow of, “Don’t make us come down there and pass this regulation so that you will moderate or not moderate X.”

 

Adam Thierer:  Which is exactly leading into the point that you made earlier, Jennifer, which is that this plays into the discussion about antitrust concerns as well, and market power, and the power of these speech platforms to moderate content. 

 

Let me just turn to that and ask you. This year we saw a flurry of activity governing many of the tech giants of Facebook, Google, Amazon. Even Twitter and others were coming under fire and calls for breaking up or — I remember somebody at The New York Post said we should nationalize Twitter, and Josh Hawley was talking about breaking it up. I’m like, what the heck? It’s Twitter, folks. 

 

But anyway, is this also huffing and puffing, Jennifer, or is this — this is serious, it seems to me. We know the AG activity is certainly serious, if nothing else. But let’s try to keep the focus on the next Congress and the next administration. Do we envision bills, legislation of something? You should mention the House report in your comments and mention that to everyone. I’m sure they know about it, but that certainly seems like it could or will yield something, right?

 

Jennifer Huddleston:  I think that antitrust, we’re going to continue to see a flurry of activity around this topic, both with regard to the particular tech giants, but as well as we are seeing a broader conversation emerge of people are recognizing, I think, that this is not going to end up  being just about tech. Regardless of how you feel about quote, unquote, “big tech” today, the potential changes to antitrust law would extend well beyond the technology sector as well. 

 

I think there are two separate questions there, and this is a place where it’s important to distinguish between what an administration might do and what we may be looking at in terms of policy changes in the next Congress. So we do have currently a DOJ case against Google, an FTC case against Facebook, and then a state attorneys general case against Facebook, and then two separate state attorneys general cases against Google, and we have state attorneys general who joined the DOJ case against Google. This is not to forget about the various private cases that also make antitrust claims such as the Epic v. Apple case as well. 

 

So what’s going on in the courts will be a quite lengthy process. These cases are not quickly decided unless we end up seeing a successful motion to dismiss in any of them. With these particular cases, we’re going to see a lot of debates around the definition of the market, around who are the competitors, as well as about what the alleged consumer harms are. We aren’t seeing those clear-cut consumer harms that we typically see from a monopolist behavior. We’re not seeing the increased prices, and what we’re seeing as the theories of harm are different than what we’ve traditionally seen in antitrust. 

 

So with the next administration, you could easily see the DOJ and the FTC continue to pursue these cases. You could also see increased antitrust scrutiny of various actions in the tech sector and beyond. We’ve already started to see this to some degree, for example, with the additional scrutiny of these as acquisition of a fintech company, Plaid, with the proposal for scrutiny in the Uber and Postmates merger, that we’re seeing an increased amount of attention to anything that involves tech companies and beyond from regulators when it comes to what impact this could potentially have on competition.

 

Adam Thierer:  Right, right. Let me ask a follow-up and involve Blake in this as well because it seems like if nothing else, the House Antitrust Subcommittee to Report on Competition in Digital Markets really signaled an expansion of concerns, if you will, about what we would include within the antitrust toolkit, and review of market power considerations. And things like privacy and other things came into play. 

 

Blake, let me ask you, just generally speaking, we don’t know everybody who will be a key player in the DOJ or FTC just quite yet on antitrust, but it seems to me like we’re seeing a shift away from where antitrust has stood for maybe the last 20 years or so, and maybe a significant broadening of the issue set that is incorporated within antitrust. Do you think that’s a fair assessment?

 

Prof. Blake Reid:  Well, I think it helps to think about which institutions we’re talking about where that’s happening. So that shift you’re describing, which — by the way, all the credit to a now law professor named Lina Kahn who wrote a paper as a law student at Yale that basically reinvigorated this debate that had been sort of won by the Robert Bork school of antitrust and said we need to reexamine the way that we think about the problems of bigness, the problems of market harm, the problems of consumer welfare in this world where we’ve got all these companies that are offering their services not only at no cost but with these complicated, two-sided markets where they use the data they collect to target adds and so on, and that we really need to rethink our antitrust laws to conceptualize the harms that can happen. 

 

And I think there’s something pretty compelling to some of those arguments when in the report that the House Antitrust Subcommittee issued, there are lots of instances where they’ve got these emails that if you think about them, it’s like Mark Zuckerberg sitting in his hotel on Park Place with his little Monopoly hat saying, “We want to buy Instagram so we can stop them from competing with us.” You read those sorts of things, and you think that sure sounds like an anticompetitive action. I think you think about some of the other mergers and anticompetitive potentially structuring of platforms that Jennifer mentioned. The Epic v. Apple case is a good example of that where there’s this pretty popular appeal to, gosh, this stuff all looks very anticompetitive. 

 

On the other hand, I’m not sure we are going to see any appetite in Congress for making changes to the antitrust law. I think you saw this in some of the dissenting or separate opinions from the Republicans in the report who sort of said, “Well, we’re not really sure this is the problem. We think maybe 230 is the problem,” and there’s a little bit more equivocating. Again, I’m not sure that’s an area where we see bipartisan consensus coming together to reform the antitrust laws. 

 

And then we’re left with the judicial standards that we’ve had which have — it’s the very tight consumer welfare standard. Look, some of the attorneys general who are bringing these lawsuits — my old boss Phil Weiser here in Colorado is an old antitrust hand. These are traditional antitrust folks who know how to work big and complicated cases through the existing system. But they are going to have a tough gauntlet to run with the current state of antitrust law as interpreted by the courts. And I don’t think we have any indication that the courts are likely to follow suit with the popular — the new Brandeisean antitrust movement. 

 

So this is another area where there’s a whole lot of smoke, but I’m not sure we’re going to end up with a lot of fire at the end of the day.

 

Adam Thierer:  Yeah, I think those are good points. Go ahead, Jennifer.

 

Jennifer Huddleston:  We could easily spend all day talking about antitrust just with the latest lawsuits alone. But I was going to mention on the Congressional front, we’ve alluded to this House report that was — the House Judiciary Committee — the Democrat majority put out a report after several hearings on antitrust. And if that report were to become policy, it would completely remake antitrust law in a variety of ways. 

 

I believe — and I apologize, I can’t remember exactly off the top of my head — it overturns 19 precedents or something along that line and also tires to overturn a law review article, in addition to calling for things that would be like a Glass-Steagall for technology and many of these other very broad antitrust actions that would fundamentally change the way this area of law has operated.

 

Adam Thierer:  Yeah. Well, you’re right, Jennifer. We could spend all day on this. Luckily, we have many other Federalist Society podcasts on this topic already and probably many more to come, so we’ll certainly revisit that topic in coming months as developments perk.

 

But let’s turn to the FCC because there’s going to continue to be a flurry of activity there. We can’t discuss everything that the agency’s going to do, but let’s divide it at least into the old net neutrality wars and how they might come back and then also bring in 5G broadband and digital divide issues. Let me start with you, Blake, and just ask you — I’ll let you take your pick there of what the priorities will be for the next FCC and whether or not net neutrality becomes yet again the sort of creature that dominates all of our time.

 

Prof. Blake Reid:  I believe that once we get through the appointment of a new FCC chair, I can’t imagine that reinstating net neutrality is not the top priority of the chair. And we have this kind of — I like to think of it as a very greased pendulum for net neutrality, which is the Supreme Court has said the statute that allows the application of Title II to internet service providers and the imposition of nondiscrimination rules that flows from that is — it’s a totally ambiguous statute. It’s amenable to either interpretation. We have fairly strong judicial confirmation that the pendulum can swing as far as folks want in either direction. And so I can’t imagine that the FCC is not going to take the initiative and dive into that. 

 

I think one question is, is this finally the time that this goes up to the Supreme Court? And does the new conservative majority on the Supreme Court take things in a different direction? On the one hand, I think you could see this being the sort of case where they decide that they’re going to take a really big swing at the administrative state through some kind of reinvigoration of the nondelegation doctrine or something like that, or perhaps to adopt a very, very expansive view of the First Amendment that says when an ISP wants to zero-rate some service because someone paid them to do it, that that’s First Amendment protected expression. 

 

And we have Justice Kavanaugh endorsing in his lower court opinions some version of that. On the other hand, you’ve got Justice Scalia’s old ideas in Brand X that it’s like, actually, the statute is unambiguous, and clearly ISPs are common carriers and clearly fit into that part of the definition. 

 

And by the way, we’ve been talking about a very serious interest on the part of conservative folks to impose nondiscrimination obligations on social media platforms. And the Court might be a little bit circumspect about how it treads on net neutrality, bearing the fact that they may be dealing with challenges to legislation on 230. 

 

The last thing I’ll say is I don’t think Congress is going to do anything about this. There’s always a call for maybe Congress can resolve — stop the pendulum from swinging, step in and do a clean net neutrality repeal. I think there’s almost no chance of that happening. You can’t really — net neutrality is rooted in the core of the Communications Act, which is a big, complicated statute that implicates lots of players in lots of different ways. And I don’t think it’s really possible to start tinkering with one part of it without starting to tinker with the rest of it. 

 

And it was a monumental achievement in 1996 when the Communications Act was last overhauled. And given the degree of polarization and partisanship that we have, I think it’s a pipedream that we’re going to see legislative reform. So I expect a fight in the courts; don’t know how it’s going to go, but I’m sure the FCC with push ahead on it as soon as the chairman is installed. 

 

Adam Thierer:  Okay. Jennifer, any more on that?

 

Jennifer Huddleston:  I think we are going to see a return of the net neutrality debate with this change in administration. And the only thing I would add is I think it’s important to consider as well what the kind of — if this becomes an issue that flips back and forth consistently depending on whether it’s a Republican administration or a Democratic administration, the kind of disruption that that level of change could cause in terms of the ability of this industry to innovate, of what kind of regulations you could be prepared for, and just the uncertainty that could happen if we’re seeing this, not only from the regulation itself, but if we’re seeing this constant back and forth in whether or not there is this kind of regulation.

 

Adam Thierer:  Okay.

 

Prof. Blake Reid:  Jennifer, could I respond to that real quick before we move on to 5G? I actually make the argument that the uncertainty is not as bad as people make it out to be, and there are folks that call for a need for certainty on both sides of this debate. I think the uncertainty might actually moderate forces in both directions. 

 

On the one hand, it signals to the ISPs that they need to be careful when they are thinking about engaging in discrimination and not generate any sorts of regimes that are not going to be really obviously good for consumers, that are going to be really unpopular, that are going to result in blocking of applications that people like. It’s going to be hard for the ISPs to go too far knowing that the pendulum’s going to swing back. 

 

And on the other hand, the FCC’s not going to get too comfortable with rules that are based on Title II knowing that they are going to get flipped around the next time around. So I actually think the uncertainty issue is a little bit overblown on both sides and that the pendulum swinging probably has led to the more or less okay state of internet governance at the network layer in the U.S., albeit leading to the sort of investment and digital divide issues that I know you’re going to talk about in the next part. 

 

Adam Thierer:  Yeah, let’s turn to that really quick. We’re about halfway through our conversation here, so let’s get through this before we move on to some copyright and privacy issues. 

 

But I wanted to ask about 5G and digital divide issues. And I guess one obvious question is with the exit of the Trump administration, will we hear some of these calls, these, in my opinion, sort of crazy calls for nationalizing 5G in response to winning the race with China kind of arguments. Are those going to go by the wayside when we have a different debate about 5G in the Biden administration? And then also, just generally speaking, how does this play out for broadband or digital divide issues? Jennifer, why don’t you go first on that?

 

Jennifer Huddleston:  I think this is a place for optimism on where we could have successful bipartisan coming together to pursue innovation in a wide range of forms. We’ve seen this even with the current FCC when it comes to spectrum policy that many of these actions have been bipartisan, and I expect that to continue in the new administration. There is a recognition that we have built a robust internet infrastructure, and that as we look to these next generation telecommunications technology, we need to build on that successful policy. 

 

Now, there are areas where there is still dispute, whether it’s over calls for nationalization or what role municipal broadband could play in these type of areas. But I think there is a kind of general understanding that we want to work with the private sector, that we want to continue to build on America’s success as we’re moving to this next generation technology and the role that that next generation technology could have in helping those who are reliant on mobile or don’t have access to more traditional fixed line broadband. 

 

I also think that the COVID-19 pandemic has really highlighted concerns about the digital divide and may have even shifted some of the discussion around why people are not connected, and may have, for some individuals, made them want to be connected when in the past they saw it as more of a luxury that they didn’t necessarily need. 

 

So I think with that in mind that there are a lot of people on both sides who want to ensure that students that are learning at home are able to continue their education, and that we are doing the best we can to provide those services and working with local communities to come up with creative solutions to meet the needs of those who may not currently be connected.

 

Adam Thierer:  Cool. Blake, anything more on 5G or digital divide before we turn to DMCA?

 

Prof. Blake Reid:  Yeah, just a couple of quick ones to say I think the emphasis on the race to 5G and competing with China will be diminished, and I think probably helpfully so. One issue we haven’t talked about today is cybersecurity, and I think the approach to cybersecurity is we need to get the Chinese vendors out of the 5G networks is one part of that strategy but has left pretty gaping holes in other parts of the telecom infrastructure. 

 

I don’t know if you guys still have the report about the exploits of the SS7 system which are decades old that came out earlier this week. So I think there’s going to be a renewed focus on the cybersecurity of the networks that will be a little bit better enabled by not having this kind of single-minded obsession with the race to 5G — which, by the way, it’s not a race, doesn’t mean anything — and the focus on competing with China have been distractions. 

 

I agree with almost everything Jennifer had to say about deployment issues, and I’d just say I suspect a new administration will be a little bit more flexible and interested in approaches that involve some local government involvement in broadband networks, whether that’s municipal broadband networks, whether that’s schools making sure that kids can get connected, whether it’s other anchor institutions and that sort of thing. I think the current administration has kind of had a revulsion to turning the dials to eleven on some of those. 

 

And as Jennifer mentioned, the pandemic has made internet access a real imperative, I think particularly for kids in school. So I think we’ll see things like use of E-rate funding to allow schools to hook kids directly up to internet access at home, that sort of thing. I think some of the constraints that might have held that back in previous years are gone. But otherwise, I totally agree with what Jennifer had to say.

 

Adam Thierer:  Right. It seems like there’s a real chance for movement there compared to some other issues or areas we’ve discussed. But another area where we might see some action, Blake, is DMCA reform. First, just remind everybody what that entails, what DMCA is all about, why it’s a pressing matter, and why we might actually see some action.

 

Prof. Blake Reid:  Yeah. So DMCA — kind of two parts to it, but the big part is Section 512 which is — kind of think of it as the equivalent of Section 230 for digital copyright. It’s the safe harbor for platforms, for search engines, for IPS that have copyright infringing material either posted by users or transiting over their networks or that sort of thing. And it establishes this notice and takedown system where if a copyright holder lets you know that there’s copyright infringement happening on your platform or your network, you’ve got to go through some process to deal with it. But in exchange for going through that process, you don’t get held liable for copyright infringement. 

 

Actually, I think prior to the election, folks were not expecting this was going to go anywhere. Senator Tillis, who was sort of rumored or in the polls looking like he was not going to win reelection, beat his polls and came back and won reelection, he had been pushing in a series of hearings DMCA reform for quite some time. And folks, I think, thought that was going to go away. I think now that he is back, that’s going to be a discussion over the next year. 

 

And this highlights another, I think, underappreciated part of the techlash but one that actually has a lot of political juice behind it, which is the copyright industries, Hollywood, the record labels, the publishers, and so forth, are really mad at the platforms and really mad about how much money the platforms make, and according to the copyright industries, at their expense. They think the cut — that the way the pie gets divided is unfair. And they see 512 as a lever to do that. 

 

So I think we could see some movement on 512 that increases the obligations of ISPs of user-generated platform content platforms, etc., to really more aggressively police copyright infringement that happens on their platforms. I think we’ll also see a push to concentrate more power in the Copyright Office, which is not an agency that gets a lot of attention because it’s actually part of Congress, part of the Library of Congress, but really centralizing some authority in the Copyright Office to oversee copyright policy. 

 

And then on the flip side, I think as part of that, we may see an exchange for the other part of the Digital Millennium Copyright Act, which is the anticircumvention preventions. And there’s actually a big libertarian angle to this, which is this is the part of the law that prevents you from breaking digital locks on copyrighted works. And it turns out that because copyright covers software, we have these little digital locks in every single product and device that we own. In every bit of content, we’re interacting with these digital locks. 

 

And so part of the bargain of the DMCA originally was trading the different provisions of Section 512 and 1201 to create a bargain between the tech companies and the copyright industries. And I think we’re going to see that bargain get revisited. So if 512 end up getting strengthened, I imagine one of the things that’ll be offered is weakening the protections on being able to break digital locks, which have proven not to be all that valuable to the copyright industry and hinder things like security research, things like accessibility for people with disabilities, and so on and so forth. So I expect we may see some movement on both of those.

 

Adam Thierer:  Okay, cool. Jennifer, you’re welcome to comment a little bit on DMCA if you’d like, but we do want to move to privacy to close things out before questions. Any thoughts on DMCA?

 

Jennifer Huddleston:  No. Blake covered it well, and I think it will be just like a lot of other tech issues that we will certainly see additional conversations around it. It’s a question of what momentum, if any, some of these proposed changes will have. 

 

Adam Thierer:  Okay, cool. Privacy. For the last at least ten years, we’ve been told that we need a national privacy law, or we’re going to get a privacy law or a privacy bill of rights. Nothing much ever seems to happen on that front. But of course, there are activities or developments on the other side of the Atlantic in Europe that have a huge bearing on this today. And then, of course, there’s California, which might as well be another country in that in that it sort of spears policy, for better or for worse, in the United States. 

 

Jennifer, what happens in 2021 on privacy? Is it more of the same, or do we actually get some action?

 

Jennifer Huddleston:  I want to be optimistic and say that — every year, it’s this is the year we’re going to see a federal framework for data privacy. I do think that California in this recent election passed Prop. 24, which further strengthened its state law in terms of it made it more difficult to change. It was even more complicated than the existing California Consumer Privacy Act. 

 

I think we are likely to see additional states try and follow suit and, unfortunately, see a patchwork potentially emerge which I think will eventually have to drive the creation of a federal framework, or we are going to have a lot of concerns about what that could do to the internet as we know it in terms of the ability to offer the same website or same database product across state lines, not only for large players who may have chosen to enforce whatever the most restrictive policy is, but for small players who are trying to compete and offer their product nationwide or internationally. 

 

And at the same time, we’re also going to see cases where the GDPR or where state laws conflict with one another. So I think that there is still a great opportunity there for a federal framework that preserves innovation but also clarifies some of the existing concerns about data privacy to emerge. From my understanding, we still have a lot of friction over issues like private right of action as well as the preemption question. I will say Joe Jerome and I did a FedSoc teleforum on the question of what happens next in data privacy about two weeks ago, and that’s available as a podcast. 

 

And before I turn it over to Blake, really quick, I do want to correct myself earlier. The House Judiciary Report calls to overturn eight Supreme Court precedents. I wasn’t sure when I mentioned earlier, but I think I had the number wrong.

 

Adam Thierer:  All right. Blake, on privacy, any action, even of a targeted nature? Or can we finally get the ball over the goal line here?

 

Prof. Blake Reid:  Well, I have to confess before I answer this question or disclose that I have a public wager with my colleague, Amie Stepanovich at the Silicon Flatirons Center, that there will not be privacy legislation this year. The penalty for — or the wager is that I think whoever loses has to stay off of Twitter for a week. 

 

But in any case, I think there’s zero chance of privacy legislation this year unless something about the politics changes pretty radically. I agree generally with Jennifer’s framing of the issues, but I think the one really big sticking point, and I think it’s just a really hard sticking point to overcome, is this preemption issue. By creating this very broad, very strong, very confusing, very complicated privacy law, California has made this debate really tricky because it has now become table stakes for folks on the industry side of the federal privacy negotiation to demand on some kind of preemption of the California State law. 

 

The problem is that privacy is such a broadly defined, poorly defined, some might say incoherent field that actually defining what you’re trying to preempt is really hard. And so it’s really hard to surgically preempt the CCPA without also preempting a wide range of state and local laws, things like open records laws, things like banking regulations and public safety laws, health regulations, so on and so forth. It’s, in my view, an almost impossible project to try to narrowly preempt CCPA without either preempting lots and lots and lots of other stuff or being underinclusive and potentially missing CCPA. Then there’s also a fairly wide range of existing federal privacy laws that are wrapped up in various sectors like the FCC. 

 

I think preemption is an impossible challenge to solve. And I think if anyone is able to solve it, they will probably do it badly, and I think they will run into resistance on that. And I think until folks figure out how to get California to back off, which is very hard because the voters passed the latest expansion so it’s hard to take off of the books, I think preemption is going to be an impossible sticking point.

 

Jennifer Huddleston:  If I could just jump in really quick to build off of something that Blake said — and I don’t know the nature of his bet with Amie, but if she’s listening, this may be a way for her to win the bet — is that when we talk about data privacy, even at a federal level, we talk about a lot of different things that we assign the term data privacy to. So in general, we tend to be talking about consumer data privacy regulation, things that involve the consumer interaction with a company like Facebook. 

 

But I do think we are also seeing increasing conversations about government privacy and government surveillance, whether it has to do with facial recognition technology or the access to data, questions around the third-party doctrine and the need for warrants for certain types of information, as well as some sector-specific privacy conversations, which is how this question has traditionally been handled at a federal level is we haven’t had an overarching federal data privacy law. We have had the FTC as a consumer protection enforcer in that regard, but we have had specific laws when it comes to health information privacy or banking privacy or educational privacy that have addressed the specific harms and concerns that may exist. 

 

Adam Thierer:  Yeah, good points from both of you. I’m going to turn it back over to Jack here. I had another question about AI and autonomist issues, but I want to see if Jack has any questions from our listening audience today that might want to be asked of our guests. 

 

Jack Derwin:  Sounds good. We’ll now open the floor for any audience questions. It looks like we don’t immediately have any questions, Adam, so if you’d like to ask what you have.

 

Adam Thierer:  Yeah, I’d love to because I did want to ask my final question which is, I spend most of my time these days on AI autonomous systems, driverless cars, drones, things like that, cutting-edge fun stuff, and another area where people have been saying now for many years, “We need a bill. We need something.” And there have been lots of measures floated. There’s even been things like the Algorithmic Accountability Act and then targeted efforts on drones and driverless cars. 

 

But I think Blake made a very good point, and I’ll come back to you on this, Blake, which is this is another thing like privacy that what is an algorithm, what is an autonomous system, what’s AI? It’s such an amorphous topic, so many moving pieces. Do we get anything on this front, no matter how bad we might need it in 2021?

 

Prof. Blake Reid:  It’s a hard question. It’s like you say, there’s so much entailed by what we mean by the regulation of AI. I tend to think there’s one strain of focus here which is on the potential for bias and discrimination and the needs of due process, fairness, accountability, that sort of thing in algorithms. I tend to think that those get wrapped up a little bit in the broader debate about privacy. They’re distinct issues, but I think they tend to end up having a fair amount of crossover. And so my guess is as goes the debate on privacy, so goes the debate on accountability. 

 

However, I do think we’re hitting an inflection point where we’re starting to see artificial intelligence systems actually being deployed for fairly critical functions. We’re starting to see self-driving cars rolling out and that sort of thing. And I do think there will be some smaller, more piecemeal approaches to is AI actually working? Where are the places it’s falling short? 

 

And so just to give an example from my world, which is focusing on accessibility, we now see automatic speech recognition being deployed in a whole range of applications. And it turns out it’s very good for some of them, and it’s not so good for others. And I think we will see focuses on making sure that automatic speech recognition algorithms actually work for particular applications. And I think we’ll see various kinds of regulatory nudges to make sure that things like that work. 

 

And I imagine we’ll see similar things, whether it’s in the autonomous car space, making sure that the algorithms actually function properly, or autonomous aerial vehicles, that they’re working properly. I think we’ll start to see the emergence of piecemeal regulations to make sure that these systems actually are working the way that they’re supposed to.

 

Adam Thierer:  Right. And Jennifer, as I turn to you to close this out, this is something we’ve written on together quite extensively. And we’ve been very skeptical even if there is a need for legislation on any of these fronts that Blake identified. We’ve both expressed skepticism that it’ll actually happen for a variety of reasons, the pacing problem, Congressional disfunction, so on and so forth. And we’ve talked about how soft law, for better or worse, fills that gap. Do you want to maybe, as a concluding point here, just talk about how, if at all, we’ll see anything happen on AI, or is it really just more and more soft law?

 

Jennifer Huddleston:  Well, and that was exactly what I was going to bring up. I think we will continue to see soft law action on these topics, both with regards to autonomous vehicles and to AI. We start to see a bit of an introduction of principles out of the OSTP on artificial intelligence at the end of the Trump administration. I expect that that’s a topic that will grow over the next four years, and so we will likely see soft law as well as potentially some action by various regulatory agencies about specific applications of AI in certain industries, I would expect, over the course of the Biden administration. 

 

When it comes to autonomous vehicles, I do think it will be interesting to see what that soft law, what that guidance, and what might eventually become rules from the Department of Transportation looks like. We saw with the current DOT a shift away to be much more open in their soft law, much more permission giving, much less prescriptive in terms of how they saw these vehicles looking, how they saw them operating, and giving innovators a green light to really think creatively. The original version of autonomous vehicles 1.0 guidance that we saw in the Obama administration was much more prescriptive. So I think it’ll be interesting to see if in a Biden administration with where we are on autonomous vehicles if you start to see more specific regulations from the Department of Transportation or if you see more of this continuing general guidance and action at a state level. 

 

I will also add I think there is a lot of exciting things going on in various other forms of transportation that we will continue to see soft law on over the next couple of years, whether it’s micromobility and dockless scooters or drones and potential EV toll, I think were continuing to see that this is an area where American innovators are thinking very creatively about how we get from point A to point B and really changing those preexisting models of how we think about transportation. 

 

Adam Thierer:  Yeah, I think that’s right. I think we probably should have started by defining what we meant by soft law and just taking about the informal guidances, multi-stakeholder processes, agency workshops, and consultations. And for better or for worse, these things have become all the rage over the past decade. And really, a lot of them were pioneered by the Obama administration, and many of the people who were in charge of that are probably going to play a role in the Biden administration. So I think it’s very likely that we will see, again, for better or for worse, the continuation of a lot of that soft law-ization of tech policy because of a congressional vacuum that we’ve identified here in our discussion today. 

 

Jack, do we have any final questions? If not, I’ll go ahead and wrap up. But I just wanted to see with our five minutes left if we have any.

 

Prof. Blake Reid:  Adam, if I could, I’d just offer a real quick response to one thing that Jennifer said. I tend to agree with you all that soft law governance is likely to be the way that things evolve here. I think it’s overstated the extent to which the law has not caught up with technology and not the other way around in these spaces. I think the places where I agree that we are going to see innovation and hopefully soft law approaches that facilitate that innovation are fairly incremental kinds of changes. 

 

But I think it’s pretty underappreciated how many of the problems in this space are just fundamentally difficulties with the technology. So when you think about things like driverless cars, yeah, there are lots of DOT regulations and state laws that have to be navigated. A bigger problem is that getting an autonomous car to drive in snow and ice in a state like mine here in Colorado is just a fundamentally difficult computer vision problem, or contending with construction, those kind of things. 

 

So I think we are going to, as we continue to not see hard law approaches here, we’re going to see innovators really hitting hard ceilings on the capacity of technology. And it will be interesting to see if we find our way around those things. But I think a lot of the issues here are less law and policy and more just hard technical problems.

 

Adam Thierer:  Yeah, I think those are all fair points, and it’s certainly a subject we’ll revisit in upcoming podcasts. And definitely, we’ll have to have you back, Blake, to talk about this because I think in a lot of areas, we’re going to continue to see these mechanisms employed just as we wait and see how both the technology evolves and Congress acts or doesn’t act. 

 

Jack, I’m going to throw it back to you if there’s anything you wanted to ask from the audience or if not, you can close us out. And I want to thank Blake and Jennifer again for joining us. But back to you, Jack.

 

Jack Derwin:  Sure. I’ll give the audience one more chance to raise their hands. It looks like we do not have any questions, so Adam, I’ll turn it back to you for maybe closing thoughts from each of our speakers to close us out.

 

Adam Thierer:  Well, I just really want to thank both Jennifer and Blake for joining me for today’s show. And I want to encourage all of you to follow them on Twitter where you can find them sounding off daily on these issues, quite aggressively, in fact. 

 

And I just want to thank all of you for listening today and remind you to subscribe to whatever your favorite podcast platform is, to subscribe to these podcasts that The Federalist Society puts out. We’re going to have more on these issues in 2021, and Jennifer and I will be back, and hopefully we can get Blake to come back and talk about it. 

 

Let us know what topic you’d like to hear more about. Certainly, all of the issues we discussed today will be topics for further shows and in-depth exploration, but there’s so much more territory we haven’t covered here today. So let us know what you’d like to hear more about. But until then, I hope you all have a happy and healthy holiday season. Bye-bye.

 

Jack Derwin:  And with that, we are adjourned. 

 

[Music]

 

Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

[Music]

 

This has been a FedSoc audio production.

Jennifer Huddleston

Director of Technology & Innovation Policy

American Action Forum


Blake Reid

Clinical Professor

University of Colorado Law School


Adam Thierer

Senior Research Fellow

Mercatus Center, George Mason University


Emerging Technology

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