Why the US can't stop fighting itself on tech policy

Sen. Elizabeth Warren’s concerns about the administration’s stance on European competition proposals show how hard it is getting the government together on tech policy.

An exterior view of the Commerce department building

The U.S. government can struggle to marshal the entirety of the federal bureaucracy to work toward the same goals.

Photo: Ian Hutchinson/Unsplash

Though politics seems like a series of clashes between Democrats and Republicans, Washington has plenty of friendly fire. When it comes to tech, President Joe Biden’s administration is no exception.

Take U.S. Commerce Secretary Gina Raimondo, who was the target of separate Wednesday letters from Democratic Sen. Elizabeth Warren and more than 20 liberal and antimonopoly groups. They object to Raimondo’s recent comments that European legislators who are hoping to pass tech competition and online safety laws will end up unfairly targeting major U.S. companies. Both Warren and the groups say Raimondo’s message is seriously out of step with the Biden administration’s push to address corporate concentration.

“The mere fact that the world's largest tech companies like Facebook, Google, and Amazon are headquartered in the United States does not justify protecting their profits and their market share as if that is our default national interest,” Warren, who is known for pointed letters on policy issues, wrote in her message to Raimondo.

The apparent tension between the comments from Raimondo, the policy positions of other parts of the administration and the goals of some Democratic lawmakers is a reminder that the U.S. government, even within one party that’s theoretically philosophically aligned, can struggle to marshal the entirety of the federal bureaucracy, with vast and sometimes contradictory missions, to work toward the same goals.

The Biden administration has upped the ante on unfair competition, particularly in tech, as lawmakers seek to do the same. The Justice Department is continuing a major antitrust lawsuit against Google, which the Trump administration filed, and Biden placed a major Google foe, Jonathan Kanter, at the head of the department’s antitrust division. The Federal Trade Commission has strengthened its competition complaint against Facebook, which also began under Trump, and the commission’s Democrats are in the midst of a crackdown on mergers. The FTC is also readying a major rule-making effort that could fundamentally reshape tech and other industries. And the Federal Communications Commission, Agriculture Department and Securities and Exchange Commission, as well as other agencies, all have roles in promoting competition under a July order from Biden, which went beyond tech.

In contrast, Raimondo last week urged the EU to give more ground on proposed tech competition legislation, particularly the Digital Markets Act, which would prohibit tech “gatekeepers” from prioritizing their own services, among other provisions.

“We have serious concerns that these proposals will disproportionately impact U.S.-based tech firms and their ability to adequately serve EU customers and uphold security and privacy standards,” Raimondo told the U.S. Chamber of Commerce, a powerful business lobbying group with a long history of opposing competition reforms. “Now more than ever, we encourage [European] officials to continue listening to … concerns by stakeholders before finalizing their decision.”

The outside groups, which were led by the American Economic Liberties Project, slammed Raimondo’s comments in their letter, echoing her rhetoric and noting Biden’s order demanded “a whole-of-government” to competition enforcement.

“Now, more than ever, it is important that the administration speak with a unified voice on the need to contain this threat to our markets and ultimately to the balance of power in democratic societies,” said the groups, which also included the Electronic Frontier Foundation, Public Citizen and the Revolving Door Project.

Raimondo, whose job it is to promote U.S. businesses interests internationally, didn’t make her remarks in a vacuum. European lawmakers have occasionally admitted U.S. companies are the focus of the legislation, if only because of their size, and the White House itself has also warned EU nations in documents about how the DMA would affect intellectual property rights. The administration has also said it opposes any clampdown aimed deliberately at U.S. companies, and the White House’s warnings prompted Margrethe Vestager, the European Commission’s executive vice president, to publicly assert the proposals were not in fact “directed toward certain businesses or toward certain nationalities of businesses.”

It’s also not the first time the government has seemed to be at odds with itself over tech policies. During the Trump administration, U.S. trade negotiators promoted other countries’ taking on of language akin to Section 230’s liability protections for online platforms when it comes to users’ speech, even though Washington at the time was seriously considering changes to Section 230. Trump himself tried to gut the legal shield through FCC action, and House Speaker Nancy Pelosi pushed unsuccessfully to remove the language from the trade deal with Mexico and Canada.

Whether the U.S. should defend its interests by promoting its most powerful companies or the system of intense competition that produced many past innovations has become a running question in tech policy, albeit often at the insistence of major tech companies and their allies. In September, for instance, former top national security officials, many with ties to tech companies, urged caution on proposed competition legislation, suggesting it could “cede U.S. tech leadership to China.”

The Biden administration also signed on to a global tax deal conditioned on the removal of digital levies that were targeting U.S. tech giants — although major companies from all sectors will likely pay more under the global framework, which aims to stop firms from diverting most of their tax burden to low-rate jurisdictions.

Despite Biden’s own doubts about Section 230, the Justice Department, which tends to defend existing U.S. law, has also moved to assert the constitutionality of the provision as part of a lawsuit that Trump brought against Twitter. And even Raimondo herself is part of a new joint EU-U.S. council working on issues including privacy protections.

For all the tensions and delicate balancing acts within the U.S., competition enforcers across borders say they’re on the same page: A day before Raimondo’s comments, the Justice Department antitrust division, the FTC and the European Commission issued a joint statement reaffirming their commitment to cooperation on antitrust matters, particularly new types of analysis that they say are needed to tackle technological developments.

“We share democratic values and a belief in the importance of well-functioning and competitive markets, cornerstones for the continued strengthening of our economic and trade relationship,” they said.


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