Big Tech regulation is bipartisan

Bradley Tusk is co-founder and managing partner at Tusk Venture Partners.

We live in a society where each party instinctively opposes the views of the other. If Democrats say they like ice cream, Republicans say that ice cream has secret microchips that spy for the Chinese. If Republicans say they like apple pie, Democrats say the dessert is a symbol of oppression and must be banned. Sadly, it sometimes does reach levels almost this silly. But there seems to be one issue defying political gravity: tech regulation.

From Congress to the Supreme Court, from states to presidential candidates, from think tanks on the left to those on the right, the stars have aligned far differently around regulating Big Tech than they have for almost any other current issue.

For example, the U.S. Supreme Court recently issued a stay of a Texas law that was designed to ban online platforms from restricting user posts based on political views. The social media companies argued that the Texas law violated their First Amendment rights to control the content on their platforms. So you have what’s meant to be a pro-Republican position on the Texas law — preventing platforms like Twitter from banning people like Trump — against what’s normally a Democratic position, protecting the First Amendment.

But the outcome was surprising. The majority who voted to pause the Texas law — Chief Justice John Roberts (appointed by George W. Bush) and Justices Stephen Breyer (appointed by Bill Clinton), Sonia Sotomayor (appointed by Barack Obama), Brett Kavanaugh and Amy Coney Barrett (both appointed by Donald Trump) — make an unusual set of allies. And on the other side, Justice Elena Kagan (Obama), one of the most liberal members of the court, sided with Justices Samuel Alito (W. Bush), Neil Gorsuch (Trump) and Clarence Thomas (George H.W. Bush) to oppose the stay — not the usual coalition.

But justices aren’t beholden to voters, so maybe it’s easier for them to agree while everyone else still has to toe the party line. Disproving that theory, though, only requires one glance at the American Innovation and Choice Online Act in Congress. The bill prohibits dominant media platforms, defined by their market cap and number of users, from discriminating against other businesses that rely on their services. So for example, Amazon wouldn’t be able to make products from outside vendors far less attractive or easy to find than their own products.

The legislation, led by prominent Democratic Sen. Amy Kloubchar, passed out of the Senate Judiciary Committee in January with a 16-6 vote, reflecting broad bipartisan support. Republican Sens. Chuck Grassley, Lindsey Graham, Ted Cruz, Josh Hawley and John Kennedy all supported it, with Grassley and Kennedy both serving as co-sponsors. Passing anything in Congress is still akin to a miracle, but if one bill has a shot of passing this year, it may be this one.

The bipartisan trend toward regulating Big Tech even occurred during the 2020 presidential race, one of the ugliest races in history. Trump and Biden didn’t agree on much, but they did agree on one issue: revoking Section 230. Sec. 230 is a federal law that protects platforms like Facebook or Twitter from being sued for content posted by its users. In my view, it is the single biggest contributor to making the internet toxic. And that issue is so much of concern to both sides that Trump publicly called out “the horrendous tech giants,” and argued for repealing Sec. 230 at a rally in Georgia. Biden then said the same thing: “Sec. 230 should be revoked, immediately should be revoked, No. 1. For Zuckerberg and other platforms. It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.”

Now, given Washington’s ineptitude, Sec. 230 is of course still alive and well. But in a world where most issues are automatically doomed because one side’s support immediately prevents the other’s, there’s at least a chance something can get done.

The same holds true at the state level. California, a blue state if there ever was one, approved the California Consumer Privacy Act in 2018, giving consumers the ability to protect themselves and their data from big tech companies. The CCPA, which went into effect in 2020, contains a broad array of consumer protections, ranging from the right to opt out of a business’s sale of their personal information to the ability to request that business delete their personal information.

Which were the next three states to follow along? Colorado and Virginia, both purple states, and Utah, an extremely red state. The legislation in each state effectively does the same thing, providing consumers with some ability to protect their privacy and their data. If Big Tech regulation were a strictly partisan issue, this never would have happened.

Even think tanks on the left and right are in unusual places. No one ever confuses the Brookings Institution and the Heritage Foundation, but they both agree strongly on regulating Big Tech. Brookings supports the creation of a federal agency to oversee Big Tech. The Heritage Foundation has equated big tech to totalitarianism, calling for aggressive reforms to constrain tech’s ability to reshape society.

Unlike almost every other issue out there — guns, climate, immigration, education, health care, abortion and so on — regulating Big Tech appeals to elected officials, judges and scholars on both sides of the aisle. Does this mean we should now expect a torrent of bipartisan legislation that finally takes on issues like privacy, antitrust and platform liability? No. We’re still talking about the government; you should always bet on failure and incompetence. But if you wanted to find one issue that at least has a shot in an impending divided government — with a likely Republican-led House and Senate and a Democratic-led White House — regulating Big Tech may be your best bet.