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Democrats have won both Senate races in Georgia, taking back control of the Senate after five years of Republican leadership. The dramatic shift will undoubtedly reenergize the legislative landscape over the next several years — and could bring Democrats' tech agenda one step closer to reality.
That's good news and bad news for tech. An antitrust crackdown and other regulation becomes more likely — stock futures fell Wednesday as investors anticipated a new regulatory regime for Big Tech — but the tech sector could see gains on immigration and some relief from the Republicans' attacks on Section 230.
Here are the top reforms and nominations that could stand a chance in a new Congress controlled by Democrats.
Breaking up Big Tech
President-elect Joe Biden's campaign argued that tech giants have "not only abused their power, but misled the American people, damaged our democracy and evaded any form of responsibility." With Democrats in control of both the House and the Senate, Biden will have much more latitude to do something about it.
Antitrust reform actually has a shot in the 117th Congress, and Democrats have already put together a 449-page report laying out their game plan. Conversations about updating centuries-old trust-busting statutes will likely begin with that blueprint from Rep. David Cicilline, which claims Big Tech has "monopoly power" and should be broken up.
Cicilline campaigned aggressively for President-elect Joe Biden and maintains close relationships on his transition team. While he won't be able to get all of his biggest ideas through a narrowly divided Senate — which still requires 60 votes for most legislation — even moderate Democrats like Sen. Amy Klobuchar have said it's time to overhaul antitrust laws for the digital age. Reforms could include making it harder for Big Tech to acquire potential rivals and passing new rules around how corporations can muscle into new markets. At the very least, Congress is more likely than ever to inject real money into the Federal Trade Commission and Department of Justice to support their antitrust lawsuits against the tech giants.
Passing a federal privacy bill
Democratic Sen. Maria Cantwell will likely become the new chair of the powerful Senate Commerce Committee — if she wants it. If she does, she'll no doubt elevate her Consumer Online Privacy Rights Act, a comprehensive federal privacy framework that she first introduced last year.
Earlier this year, Cantwell criticized the array of other privacy bills in Congress, particularly those from her Republican counterparts on the committee. "These bills allow companies to maintain the status quo, burying important disclosure information in long contracts, hiding where consumer data is sold, and changing the use of consumer data without their consent," she said.
COPRA would give users the right to see and delete any personal information that companies have amassed about them and require tech companies to clearly explain what they are doing with users' data. It also includes provisions that would allow individuals to sue companies over privacy violations and enable states to pass their own separate privacy legislation. Those line items will certainly spur partisan wrangling and invite significant pushback from tech giants, who have consistently argued that federal legislation should override state laws.
But an updated COPRA could have legs – especially if Biden throws his weight behind it. COPRA is already co-sponsored by Klobuchar and Democratic Sen. Ed Markey, and it was the result of more than a year of behind-the-scenes conversations.
A federal privacy bill will still need support from both parties, but the Democratic win gives Cantwell a boost in negotiations.
Curbing bias in AI
Biden and Vice President-elect Kamala Harris have pledged to focus on civil rights across all policy areas, and tech won't be any exception. It's safe to expect that Congress will work to tackle issues including discriminatory algorithms and biased facial recognition technology over the next year, especially considering Harris herself has signed on to legislation that would tackle racial bias in AI.
Democrats' police reform bill, which could make a comeback in some form, included provisions to restrict the use of facial recognition technology by police officers. Many privacy and civil rights advocates, including a key member of Biden's transition team, have been pushing Congress to address AI bias in any forthcoming privacy legislation. Those conversations are expected to start with the Algorithmic Accountability Act, co-sponsored by Sens. Cory Booker and Ron Wyden, which would require companies to study and fix algorithms that result in discriminatory decision-making.
Expanding high-skilled immigration
Biden has promised to overturn some of President Trump's more draconian restrictions on high-skilled immigration, including the H-1B visa program that both tech giants and companies across sectors use to recruit technical talent from overseas. But with control of both chambers of Congress, Democrats could pursue more full-throated reforms, like the long-promised path to citizenship for "Dreamers," which tech giants like Microsoft, as well as tech leaders like Mark Zuckerberg and Tim Cook, have overwhelmingly endorsed.
The Democrats could also take another stab at legislation that would expand high-skilled immigration and fast-track permanent residence for people on student visas in STEM fields, similar to the policies they pursued in 2013. Back then, a bipartisan group known as the Gang of Eight successfully pushed an immigration bill through the Senate, with 14 Republicans joining Democrats in support. Ultimately, it failed in what was then a Republican-controlled House.
"We need legislation to build a modern, high-skilled immigration system — one that expands the ability for America to be the destination of talent from around the world," said Todd Schulte, president of FWD.us, an immigration advocacy group backed by Zuckerberg. At the top of the agenda, Schulte expects to see legislation that offers a path to citizenship for Deferred Action for Childhood Arrivals beneficiaries and officially gives the spouses of H-1B visa holders who are on H-4 visas the ability to work.
Taking a scalpel, not a hammer, to Section 230
While Democrats from Biden on down have expressed concerns about Section 230, they have not been nearly as preoccupied with the law as their Republican counterparts and, in particular, Trump. During recent congressional hearings on Section 230, leading Democrats expressed dismay and even disdain for Republican attempts to force social media giants' hands on content moderation decisions. With competing priorities like vaccine distribution and delivering additional stimulus funding to Americans on Democrats' to-do list, Section 230 reform will likely fall farther down on the legislative agenda.
But that doesn't mean Democrats will leave the law alone. Unlike Republicans, who have repeatedly blamed Section 230 for tech companies' ability to moderate content, Democrats have primarily expressed concerns about tech companies' lack of moderation and the protections that Section 230 affords them when extremist, violent or otherwise offensive content causes real-world harm.
Recently, leading voices on the left, including Biden's new deputy chief of staff, Bruce Reed, have called for changes to Section 230, particularly as it pertains to content that hurts children online. In the Senate, Democrats Brian Schatz and Richard Blumenthal have each sponsored bills that would reform Section 230, albeit in dramatically different ways. And in the House, Reps. Anna Eshoo and Tom Malinowski introduced a bill of their own in 2020, which would allow companies to be held liable if their algorithms amplify extremist content. They've promised to reintroduce that bill this year.
Nominating progressives as top tech watchdogs
With Democrats in control of the Senate, Biden will no longer have to consider how Mitch McConnell will feel about his nominees to various federal agencies, including the FTC, DOJ and Federal Communications Commission. It's likely that he will quickly seek to fill the open Democratic slot at the FCC, ensuring Democrats can push through their agenda at the agency, despite the last-minute GOP confirmation of Nathan Simington last year. And he's now freer than ever to elevate progressives that a GOP-led Senate would have resisted, like handing the FTC chairman's slot to FTC Commissioner Rohit Chopra, a close ally of Sen. Elizabeth Warren.
Updated: This story was updated at 1:48 p.m. PT after Jon Ossaff's win was confirmed.
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Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.