Hilary on the Hill: Congress and Big Tech (Trump, Elections, Courts and Hearings)

Hilary on the Hill: Congress and Big Tech (Trump, Elections, Courts and Hearings)

9.25.2020

By Hilary Jochmans

As Americans have socially distanced since March, social media and the online platforms Google, Facebook, Amazon and Apple, colloquially referred to as “big tech,” have further advanced their reach into all aspects of our daily lives. We didn’t go to physical stores, so we shopped online. We didn’t see our friends in person, so we kept up with them through Facebook posts. We didn’t go to movie theaters, so we streamed entertainment. And as we learned how to sew masks, homeschool children and cook three meals a day, we relied on search engines to gain this knowledge.

In this column, I examine how Washington has exercised its power in the technology space and what to look for after Election Day.

Congress has been critically looking at big tech issues for the past two years, specifically antitrust, liability protection and social media platforms.

In July, the Antitrust Subcommittee of the House Judiciary Committee held the first-ever hearing with the four CEOs of the big tech companies. This marathon six-hour hearing, which ironically was held virtually, was the latest action in a year of investigations by the committee into the tech companies’ business practices and whether they were harmful to consumers, small businesses and other tech companies. A final report is due in the fall.

Section 230 of the Communications Decency Act, 470 U.S.C. § 230, generally grants immunity from liability to online platforms for content of user-posted material. This provision has been critical to the growth of the internet over the past 25 years. Members on both sides of the aisle have raised the possibility of revisiting this law to examine how tech platforms handle the content, but Republicans have been particularly interested in this, as they say conservative views are being censored. Senator Josh Hawley (R-MO) has introduced legislation that would require Google, Facebook and others to cease selling targeted ads if they want to keep this legal protection.

There are several bills pending in the House and Senate addressing social media usage and advertising. To address the perceived societal ill of endless screen time, Hawley has also introduced the SMART Act. This bill would ban infinite scroll and other features, except in limited circumstances. It would also require social media platforms to include “natural stopping points” for users, which would essentially terminate a user’s ability to scroll after a certain amount of content. At the opposite end of the political spectrum in the Senate, Ed Markey (D-MA) has introduced the CAMRA Act, which would direct the National Institutes of Health to research the effects of technology and the media on children, with a focus on social media addiction.

At the other end of Pennsylvania Avenue, President Trump’s war on TikTok played out in media headlines this summer. For those readers over the age of 16, TikTok is the wildly popular and lucrative short-form video app known for users posting silly dances and other forms of personal expression. With over 100 million users in the U.S. alone, the Chinese-owned app has come under fire for allegedly not safeguarding the personal information of its users and potentially sharing the information with the Chinese government. TikTok has repeatedly stated that it does not store U.S. users’ information on servers in China and that it would not give U.S. data to the Chinese government, despite a law which can compel Chinese internet companies to provide user data to their government.

Over the summer, Trump claimed he would “ban” TikTok, citing national security concerns and vulnerability of U.S. user information. There are three legal mechanisms he could employ to accomplish this goal. The first is CIFIUS, the governmental interagency Committee on Foreign Investment in the U.S., which is charged with reviewing foreign investment and purchases of U.S. companies if there could be a threat to national security. Since 2017, CIFIUS has been investigating TikTok’s parent company ByteDance for its purchase of Musical.ly.

The second tool is the Commerce Department’s “Entity List.” This nondescript structure is essentially a blacklist for certain foreign companies and individuals. It would be very difficult for U.S. companies to do business with, and provide technology to, these entities. In terms of TikTok, Apple and others would not be able to facilitate the app on their platforms.

On August 7th, Trump acted on his third option, which was to issue an Executive Order (EO), a power granted to him by the Constitution to carry out the business of government. The EO banned TikTok’s operations in 45 days if it was not sold. The ban could be averted if TikTok was sold to “a very American company.” As of the writing of this article, TikTok had just announced it agreed to sell its U.S. operations to Oracle. This sale will need to be reviewed by CIFIUS.

While the Supreme Court has yet to weigh in explicitly on many tech issues, they did acknowledge in Packingham v. North Carolina (137 S. Ct. 1730, 1735–36 (2017)), that the internet, particularly social media sites, are “important places” to “speak and listen” and that “social media users employ these websites to engage in a wide array of protected First Amendment activity.” Lower courts have ruled on targeted issues, such as the unauthorized practice of collecting, storing and sharing certain personally identifiable information without the user’s consent, particularly in the case of minors. If cases continue, and there a circuit split, we may well see the Supreme Court take up these topics in future sessions.

What impact will the elections have on big tech? If Trump wins reelection, he will likely continue to wage his anti-China war where the key battle is tech. Ownership of tech companies, along with any perceived censorship of conservative views, will likely dominate his tech agenda. In addition, we can expect the Justice Department to continue their antitrust investigations. However, if Joe Biden is elected he will have to balance competing interests within his party. While he has been critical of liability protections for online platforms, he has not gone as far as the more liberal wing of his party which has called for breaking up what they consider “monopoly power” of big tech. Another component of Biden’s political base is comprised of social media savvy millennials who grew up with the internet, and others who utilize technology constantly professionally and personally, particularly during the pandemic. Also impacting a Biden administration’s tech policy would be vice president nominee Kamala Harris, who has represented Silicon Valley in the U.S. Senate and is perceived to have close relationships with the industry.

Regardless of who wins the election, there will be attacks on what role technology had in the outcome. Were security measures lax which allowed foreign hackers to influence the election? Were conservative voices silenced in the on-line debates? Were candidates held accountable for the truth of their political rhetoric? We can expect the 117th Congress, the next president and possibly the Supreme Court to look at these issues in 2021.