It hasn’t always felt that way, but 2021 actually was a year of gradual progress in the world of tech policy. Sure, there were cringey moments in Congress: “Will you commit to ending finsta?" immediately springs to mind. And globally, government-imposed crackdowns are threatening a new era of tech-enabled censorship.
But in the U.S., 2021 was a year when lawmakers at least started to move beyond cherry-picked posts and individual failures by tech companies and started scrutinizing the systems that underpin those companies. At times, they even did this on a bipartisan basis, coming to something like a coherent consensus on issues related to antitrust, transparency and the digital divide.
It was also the year that some of the top thinkers in the world of tech policy — Lina Khan, Tim Wu, Rashida Richardson and Meredith Whittaker, among them — found their way into the federal government, promising to bring new approaches to competition policy, AI ethics and more.
With those puzzle pieces in place, the question now is: What can lawmakers and government officials actually achieve in 2022? Here’s a look at the top policy issues to watch — both in the U.S. and abroad — in the coming year.
The global competition crackdown
When it comes to antitrust enforcement, tech companies are getting hit from all angles: a trend that is certain to continue throughout the new year. In Congress, members face a package of bipartisan bills in both chambers, which aim to prevent tech companies from preferencing their own goods and services, increase scrutiny on mergers by large companies and stop app stores from locking app developers into their pricey payment systems, among other things.
Those bills are likely to move in the next Congress, said Peter Chandler, director of Federal Policy and Government Relations at the lobbying group TechNet. That’s worrisome news for the tech sector, Chandler said. “I think the bills were written in such a way that there were a lot of unintended consequences,” he said of some that have already passed out of committee in the House. “I don’t think enough thought was put into how they affect the startup ecosystem in America.”
And Congress is only one battlefield in the antitrust war. There’s also a newly animated FTC, led by antitrust evangelist Khan. The FTC has already brought a case against Facebook, which it amended after a court dismissed its initial complaint. It’s simultaneously investigating Amazon. And it warned businesses that have filed for mergers that if they proceed with a merger before the FTC finishes its review, the FTC could still find the merger to be unlawful.
The Department of Justice's Antitrust Division, meanwhile, is now led by fellow antitrust warrior and noted Google critic Jonathan Kanter. In the role, Kanter will oversee the DOJ’s antitrust work, including its ongoing suit against Google: news which prompted Google to call for Kanter’s recusal.
As if all of that weren’t enough, tech companies are also facing new antitrust pressure in Europe, where the Digital Markets Act promises to place new requirements on so-called “gatekeeper” companies in the name of promoting competition.
US broadband implementation
A longtime staple of tech industry wishlists, the digital divide might actually begin to close in earnest this year thanks to the $65 billion in broadband funding set aside in the bipartisan infrastructure bill. That includes $42.45 billion for states to build out new broadband networks, as well as $14.2 billion in monthly discounts for low-income Americans, $2.75 billion for digital literacy programs and $2 billion for rural broadband construction.
What matters now is how that money is doled out and spent, said Jason Oxman, CEO of the Information Technology Industry Council (ITI). “There’s a lot of money going out the door, and we want to make sure it’s done right to address the digital divide in a tech-neutral manner that advances all forms of broadband,” Oxman said.
The National Telecommunications and Information Administration will oversee the distribution of the grant funding and must still develop rules to guide states’ proposals. Both ITI and TechNet said they are now working with the federal government, as well as states, to offer input on their implementation plans. “This is a 12- to 18-month endeavor to really start to get that service out to people where they are,” Chandler said.
The race against China
The Senate scored a major bipartisan victory in 2021 with the passage of the U.S. Innovation and Competition Act, which included more than $200 billion in funding for science and tech research, chip manufacturing and more. (It also included a bunch of weirdo carveouts).
The bill was framed as an effort to ramp up U.S. competition with China, but it’s faced a slower path in the House. House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer recently announced plans to move the bill through the conference process, giving tech leaders hope that USICA, or at least core parts of it including the investment in chips, will pass in early 2022. “I’m very bullish on it happening, and I think the chips part is going to happen one way or another,” Chandler said.
There are also ongoing efforts inside the White House to form a global front to stand up to authoritarian uses of the internet by countries like China. Leaders at the National Economic Council and National Security Council had planned to announce a so-called Alliance for the Future of the Internet in 2021, which would bring democracies around the world together under a set of commitments regarding the free and open internet. But following substantial pushback from internet freedom advocates, the White House postponed plans to launch the alliance until at least January. Once launched, the alliance will kickstart a yearlong collaboration between governments, advocacy groups and the private sector to come up with a set of commitments that members of the alliance will adhere to.
Post-Privacy Shield deal-making
The U.S. and EU are still trying to come to an agreement on transcontinental data transfers in the wake of 2020’s monumental Schrems II decision. That ruling invalidated the Privacy Shield framework, which had enabled companies to transfer data between the U.S. and EU for years. Ever since, all U.S. companies that handle European data — but particularly tech companies that handle a whole lot of it — have been hanging in the balance.
In 2022, the pressure is on for the two governments to see their way to an agreement. At the crux of the court’s decision to invalidate Privacy Shield was the concern that European citizens whose data is processed by U.S. government agencies have no redress through the U.S. court system. In the EU, they’re entitled to it. Now, Oxman said, the U.S. Commerce Department is working to negotiate a way for EU citizens to take their claims straight to government agencies through administrative law processes. “Those negotiations are ongoing, and as we understand it, close to resolution,” he said.
The ‘AI Bill of Rights’
In 2021, the White House Office of Science and Technology Policy announced it intended to draft what it’s calling an AI Bill of Rights to “clarify the rights and freedoms we expect data-driven technologies to respect.” To do that, the office put out a request for information on how biometric data is being used. The office plans to use that information to develop this bill of rights over the course of 2022.
While it’s still unclear exactly what the implications of that document could be, the officials behind the effort — director of OSTP Eric Lander and deputy director for Science and Society Alondra Nelson — floated some ideas in an October Wired op-ed that are worth keeping an eye on this year. “Possibilities include the federal government refusing to buy software or technology products that fail to respect these rights, requiring federal contractors to use technologies that adhere to this ‘bill of rights,’ or adopting new laws and regulations to fill gaps,” Nelson and Lander wrote. “States might choose to adopt similar practices.”
State privacy laws come into focus
This is usually the part of the year-end roundup where we tell you that this, yes this, is the year for a federal privacy law. But honestly? We’ve been wrong about that before, so at the risk of repeating history, we’ll focus on where the action really is: the states.
In 2022, California’s newly created privacy agency will have to promulgate rules and regulations related to the California Privacy Rights Act, the successor to the California Consumer Privacy Act, which passed in 2018. The new CPRA law gives widespread power to this agency to define regulations around concepts like “automated decision-making” and cybersecurity. It’s little wonder, then, that tech companies and civil liberties advocates alike have been pushing the agency to issue rules in their favor. That work will likely continue throughout this year. The situation is similar in Virginia and Colorado, which both passed privacy laws in 2021 and will need to develop the finer points of those laws this year.
All three of those laws go into effect in 2023, which renders 2022 a make-or-break year for anyone looking to influence how they’re ultimately implemented. And there could be more movement on privacy laws in other states as well. According to TechNet, 31 states have proposed privacy laws in the last two years alone.
Of course, that’s one reason why tech companies are pushing Congress to pass privacy legislation at the federal level. So, given all of this activity in the states, could 2022 be the year for Congress to act? “2022 is the year, definitely,” Oxman said, “as long as you promise not to come back and check next year.”
