Tech legislation to watch in 2021
Maybe they'll actually get something done this year.
Photo: Joshua Roberts/Getty Images
When it comes to tech policy, 2020 was not exactly a banner year for "getting things done." Washington focused on hearings, bills that went nowhere, negotiations that hit roadblocks, executive orders that didn't amount to much and then some more hearings.
But 2021 brings a new presidential administration, a new Congress and maybe — maybe — legislation that actually goes somewhere this time. Here are the big pieces to watch.
President-elect Joe Biden and his advisers have made it clear that passing an enormous economic stimulus package will be one of their 100-day priorities, with an emphasis on recovery and addressing deep technological fissures exposed by the pandemic.
And the tech industry sees an opening to make some money, particularly when it comes to government modernization efforts and broadband. A new economic package will almost certainly include billions of dollars for internet access and affordability in an effort to get more people online during a pandemic that has highlighted the severity of the so-called digital divide.
"One of the focuses of an economic package at the beginning of next Congress will be finding a deal on how to increase the availability and affordability of high-speed internet access," said Aaron Cooper, vice president of global policy at software trade group BSA.
Cooper said there's also increasing interest in Congress to devoting some resources toward shoring up states' cyber defenses and technological capabilities after COVID-19 strained government systems, like state unemployment websites.
Lawmakers this month passed a COVID-19 relief package that includes $7 billion for broadband funding, and Biden will inevitably try to go further.
Negotiations around a federal privacy bill broke down in 2020 amid bitter partisan disagreements, and lawmakers ultimately failed to pass legislation before California's privacy law (and, subsequently, Proposition 24) went into effect. Talks were sidelined as COVID-19 took priority in Congress and efforts to slip privacy provisions into larger packages ultimately failed.
But Hill aides and industry watchers said they remain optimistic that the Biden administration could usher in a new chapter in privacy talks, and Congress could at least inch closer toward passing a bipartisan privacy bill, a complex and delicate process that was always expected to take years.
"In terms of top priorities, baseline privacy legislation is a very likely candidate in part because there's been so much progress towards agreement over the course of the past Congress," said Alexandra Reeve Givens, president and CEO of the Center for Democracy and Technology.
Discussions will likely begin with the partisan privacy bills introduced by Senate Commerce Committee Chairman Roger Wicker and ranking member Sen. Maria Cantwell last year, and negotiators will seek to hash out differences between the parties on whether the legislation should preempt state laws and allow individuals to sue companies over privacy violations.
Cantwell recently put her stake in the ground, criticizing the Republican-backed privacy bills for "allow[ing] 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."
Any bill would necessitate serious bipartisan and bicameral negotiations, but it will be important to see how the Biden White House chooses to get involved. After all, of the key players in privacy talks, Cameron Kerry is the younger brother of close Biden confidante John Kerry.
Of all the Section 230 proposals out there, the PACT Act likely has the most promising prospects, if only because it has buy-in from Republicans, Democrats and — potentially — Mark Zuckerberg.
The PACT Act, introduced by Democratic Sen. Brian Schatz and Republican Sen. John Thune, would require online platforms including Facebook and Google to provide more transparency around their content moderation decisions and policies, which Zuckerberg said he's open to, in theory.
""I've long believed Section 230 was ripe for reform, and I believe the bipartisan PACT is the most effective way to do it," Thune said. "I do intend to reintroduce it early next year with Sen. Schatz, and our staffs have been meeting regularly to optimize the language of the bill as we plan for reintroduction."
And it's the only proposal, other than the controversial EARN IT Act, that touts signatories from both parties.
"Its focus on increased transparency is very noncontroversial and a very promising aspect to include in a 230 bill," said Ashley Johnson, a research analyst with the Information Technology and Innovation Foundation.
The PACT Act will be a reasonable starting place, but it's unclear if Republicans and Democrats will be able to — or even genuinely want to — find common ground when it comes to Section 230.
"I'd predict we're just going to see more theater here, because Section 230 is the political prop that everyone gets to use to rant and rave about their frustrations," said Berin Szoka, president and founder of TechFreedom.
It might be particularly difficult after Trump nearly blew up negotiations on the National Defense Authorization Act over his demand for a Section 230 repeal.
"I think the angle of both parties is radically different [in the 230 debate] and the president turning up the temperature doesn't really bring Democrats to the table in a more meaningful way," said one House Democratic staffer.
The House Judiciary Committee's 449-page report will certainly lay the groundwork for an antitrust agenda in the new Congress, and Biden's team has already been briefed on its contents. Democratic Rep. David Cicilline plans to introduce multiple pieces of antitrust-related legislation next year and remains optimistic that there will be some bipartisan buy-in.
Currently, the most bipartisan proposals on updating antitrust laws revolve around giving more resources to the FTC and DOJ, and it's going to be harder to get farther-reaching legislation through a Republican Senate.
One tech lobbyist said the House Judiciary Committee report's influence will go deeper than that — it will set up sweeping expectations for federal regulators as they approach the future of antitrust in digital markets. Meanwhile, the ongoing cases against Facebook and Google could strengthen the argument for new antitrust laws as they reveal the limits of the centuries-old statutes.
"The House Judiciary Committee has shown there's a lot of energy around competition and antitrust enforcement," Givens said. "One potential area of agreement is around increased resources for the agencies, including civil fining authority."
During his campaign, Biden staunchly threw his support behind gig workers, pledging to work with Congress to establish a federal standard modeled on the so-called "ABC Test," which would establish gig workers as employees.
"The ABC test will mean many more workers will get the legal protections and benefits they rightfully should receive," Biden's campaign website reads.
It's going to be nearly impossible for Democrats to move that legislation through the Senate, so Biden will have to pull levers at the National Labor Relations Board and Department of Labor to shore up gig worker rights.
But aides with the House Committee on Education and Labor said lawmakers intend to reintroduce the gig worker-friendly PRO Act, which passed the House last year, and will remain in touch with the Biden administration to push forward priorities.
It's possible that moderate Democrats and Republicans will seek to hash out a compromise bill incorporating some of the wishes from gig companies and workers. But it would be a heavy lift for them to push that legislation through both chambers, particularly during the union-friendly Biden administration.
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.