The Whistleblower And Encryption: Everyone Has An Angle, And Not Everyone Is A Policy Expert

from the nuance,-nuance,-nuance dept

Over the weekend, the Telegraph (not the most trustworthy or reliable in a batch of UK news organizations that have long had issues with accuracy in reporting) claimed that the latest (and most high profile) Facebook whistleblower, Frances Haugen, was prepared to come out against encryption. This (quite rightly) raised the hackles of multiple encryption experts. As people were getting pretty worked up about it, the Telegraph (silently, and without notice) changed the headline of the piece (from "Facebook whistleblower warns ‘dangerous’ encryption will aid espionage by hostile nations" to "Facebook whistleblower warns company's encryption will aid espionage by hostile nations") as well as the actual text of the story, to suggest a slightly more nuanced (but still not great) view -- effectively saying she supported encryption, but was concerned that Facebook would use encryption as a "see no evil" kind of blindfold to problems on its platform.

Ms Haugen said that she is generally pro-encryption, which enhances users’ privacy. However, she added that Facebook’s plan was also way for the company to “sidestep” harmful content happening on its platform rather than address it.

She said: “End-to-end encryption definitely lets them sidestep and go ‘look we can’t see it, not our problem’.”

Of course, context and motives matter here, and the Telegraph -- which tends to be quite supportive of the current UK government, seemed to be twisting Haugen's (admittedly confused) statement in support of UK Home Secretary Priti Patel's positively dangerous plan to get rid of end-to-end encryption in the UK. It sure looks like the Telegraph went looking for a way to support that argument, and used Haugen's words to that effect.

A few hours later, Haugen actually testified before a UK Parliamentary committee and claimed her words were taken out of context. She said that she's strongly pro-encryption... but then tried to claim that her comments to the Telegraph were more about how she doesn't trust Facebook to actually implement encryption. Which is... a strange and almost nonsensical claim.

“I want to be very, very clear. I was mischaracterised in the Telegraph yesterday on my opinions around end-to-end encryption,” she said. “I am a strong supporter of access to open source end to end encryption software.

“I support access to end-to-end encryption and I use open source end-to-end encryption every day. My social support network is currently on an open source end-to-end encryption service.”

[....]

“Facebook’s plan for end-to-end encryption — I think — is concerning because we have no idea what they’re doing to do. We don’t know what it means, we don’t if people’s privacy is actually protected. It’s super nuanced and it’s also a different context. On the open source end-to-end encryption product that I like to use there is no directory where you can find 14 year olds, there is no directory where you can go and find the Uighur community in Bangkok. On Facebook it is trivially easy to access vulnerable populations and there are national state actors that are doing this.

“So I want to be clear, I am not against end-to-end encryption in Messenger but I do believe the public has a right to know what does that even mean? Are they really going to produce end-to-end encryption? Because if they say they’re doing end-to-end encryption and they don’t really do that people’s lives are in danger. And I personally don’t trust Facebook currently to tell the truth… I am concerned about them misconstruing the product that they’ve built — and they need regulatory oversight for that.”

But... here's the thing: Haugen may be a wonderful data scientist. And, she may have done the world tremendous good by leaking tons of internal Facebook documents, giving the world some insight into what's going on at the company. But that doesn't make her an expert on encryption. And, it shows. As Alec Muffett, a security expert who actually used to work on encryption at Facebook, noted in a detailed thread, what Haugen is asking for here is dangerous and shows a real lack of understanding about encryption.

First, she claims that there should be a government review of any Facebook end-to-end encryption to make sure it's legit. And, yes, there are many reasons to not trust Facebook, but introducing the idea that government needs to review and approve encryption is worse. Is she completely unaware of the government's history of constantly trying to undermine and backdoor encryption? I mean, it's not exactly secret. And the US government has been trying to undermine and backdoor encryption pretty aggressively lately. Suggesting that there needs to be some government entity blessing the encryption opens the door to all sorts of mischief.

The separate issue is claiming that end-to-end encryption for Facebook is somehow different because you can use Facebook for more than just messaging, and it's bolted on to other services. Again, as Muffett explains, this kind of thinking is dangerous as well. It suggests that encrypted chat needs to be silo'd and kept distant from tons of internet services, when the reality is often that many more internet services should be embracing encryption much more widely to protect their users.

This is also why it's difficult to understand Haugen's claims -- as they seem somewhat contradictory. Even if we take the Telegraph's mission-driven editing with a grain of salt, Haugen doesn't deny her claim that encryption makes it harder to protect Uighurs:

“A key part of [Chinese operatives’] strategy was to send malware to Uighurs who lived in places that weren’t China, as if they could compromise one phone they could compromise a whole community. We said we won’t be able to see the malware anymore [with encryption].”

But, that's backwards. Do we think Uighurs will be more protected with encryption, or without it? As Riana Pfefferkorn pointed out just last week, encryption and security go hand in hand. It is not -- as law enforcement would falsely have you believe -- that encryption and security are at odds. Encryption provides security -- especially against oppressive governments trying to genocide and entire culture. Uighurs need encryption much more than they "need" Facebook to be able to see what the Chinese are doing to protect the Uighurs.

Haugen's statement on the Uighurs seems ridiculous when thought about: it's basically arguing that without encryption Facebook can better protect the Uighurs from the Chinese government. Does anyone actually believe that? Or would they be better off with access to encryption? They shouldn't necessarily rely on Facebook's encryption, but arguing that it shouldn't be there to better protect them is just silly.

Again, Haugen has likely done the world a great benefit in leaking a bunch of internal documents (I'll have more on those soon). But it's important to remember that just because she blew the whistle regarding Facebook research, it doesn't make her an expert on everything else. She's not an expert on content moderation, or antitrust, or encryption. She may be a useful source for exploring what Facebook's research showed, or some of Facebook's decision making, but it's depressing how quickly eager politicians looking to gain support for their already existing plans are exploiting her to argue for their position on topics she's really not qualified to comment on. Indeed, it's also dismissing the hard work of tons of actual experts on these topics, from practitioners in the field to the academics who study these issues.

Filed Under: encryption, frances haugen, going dark, tech policy, uk
Companies: facebook

China's Game Controllers Ignore Emergent Order

from the emergent-order-is-important dept

Last week, China restricted children under 18 to three weekend hours of video games per week. If you’re a parent of a Minecraft- or Fortnite-obsessed child, you may be wondering why the U.S. doesn’t do something similar. But China’s move against juvenile gaming is just the Chinese government's latest salvo in their barrage of attempts to control internet technology. Their centralized approach is one that we in the U.S. have historically rejected and should continue to reject.

China’s Great Firewall has long cut off the Chinese people’s access to much of the global internet. But recent actions in China focus on its own tech companies. These moves include passing a stringent new privacy law (which offers no protection from government spying) and tough new antitrust restrictions. China also blocked internet finance company Ant’s I.P.O., fined e-commerce company Alibaba 18.2 billion yuan and has heavily regulated online lenders, rapidly reducing their numbers from 5,000 to six as of September 2020. One prominent financial tycoon was abducted in Hong Kong, taken to China, and is apparently under house arrest while Chinese regulators seize and dismantle his companies. The crackdown expands beyond tech companies to users – Chinese police have arrested social media stars for on-camera eating as part of a campaign against food waste. It is, according to commentary circulated by Chinese state media, a “profound revolution” against “the chaos of big capital” and “a return to the Communist Party of China’s initial aspirations, a return to people as the center, and a return to the essence of socialism.”

In short, China’s leaders are grasping to centralize control. And their method is to label individualism as a vice rather than a virtue.

China’s leaders fear that they are losing control of markets and society, especially in the digital age.

They are right. But as I argue in my forthcoming book, Getting Out of Control: Emergent Leadership in a Complex World, control is overrated – and often it is counterproductive. Complex systems like markets are characterized by emergent order, with robust and productive patterns forming from the interactions of many individual participants following relatively simple rules. These patterns cannot be anticipated or centrally designed, because the knowledge they embody is produced by the individuals grappling with the situations in front of them.

Attempts to centrally control such systems eliminate much of the nuance and knowledge contained within them. The result is a simplistic, centralized system that leaves most participants worse off than they were under the emergent order produced by the complex, decentralized system. Unsurprisingly, those who are better off under centralized systems tend to be those at the center – those in control. Their control comes at the expense of everyone else’s welfare.

I don’t expect this argument to persuade China’s leaders to change their path, although for their citizens’ sake I wish they would. But it might help guide our path here in the U.S. The U.S. character – and our Constitution - would never permit the kind of full-bore government centralization that China has undertaken. Yet the technocratic desire to be in control, especially in times of rapid change, is alive and well here. 

Indeed, many of the ideas China has adopted are floating around U.S. academia and even Capitol Hill. Breaking up big tech, regulating new technologies like blockchain and cryptocurrencies, regulating what kind of speech cannot or must be allowed on social media sites, limiting the use of encryption – these are increasingly common sentiments across the U.S. political spectrum. Sen. Josh Hawley’s proposed bill to ban “infinite scroll” on phone apps would fit in seamlessly with the Chinese government's diktats.

It's as if China is taking the most precautionary policies from US academics, advocates, and lawmakers and implementing them via boot, truncheon, and machine gun. In fact, China’s commercial privacy law – created by a government that surveilles its citizens relentlessly – has drawn praise from some U.S. tech policy leaders who seem to wish we in the U.S. could ram through such onerous laws without the inconveniences of the democratic process.

But America’s strengths include our embrace of individualism, couched appropriately within functioning institutions (themselves artifacts of emergent order), and our willingness to participate in complex systems where no one seems to be in control. These strengths have made the U.S. an economic powerhouse, home to many great innovators in technology and businesses, and the source of creative expression that entertains and educates the world.

As tech analyst Ben Thompson has argued, let’s not do a pale imitation of China's attempt to stamp out individualism and centralize control. Instead, let's double down on freeing the individual to create solutions to the problems they and others face.

Even if that means you, not the government, has to tell your kid to put down the game controller.

Neil Chilson is a senior technology and innovation research fellow at Stand Together and former Chief Technologist at the Federal Trade Commission. His new book, "Getting Out of Control: Emergent Leadership in a Complex World," will be released on September 23.

Filed Under: china, emergent order, internet policy, tech policy, top down, video games

Why The EU Needs To Get Audits For Tech Companies Right

from the it's-too-easy-to-get-it-wrong dept

Discussions over the right – or at least a good – way to regulate big tech companies are heating up in the European Union (EU). Several legislative proposals are set to be negotiated, with public and behind-the-scenes lobbying in full swing already. As with any regulation, a key question is how to hold corporate decisionmakers accountable for their actions and how to create transparency. Some of the ways this has typically been done in other industries include legally mandated corporate compliance regimes, rules for financial or supply chain transparency and mandatory risk assessments and audits. These ideas are coming to the tech sector now, too, especially with the draft “Digital Services Act” (DSA). The DSA suggests new due diligence rules for platforms such as Facebook and YouTube, for example, regarding what processes are in place for content moderation and how they deal with potential infringements on users’ fundamental rights. Audits are introduced to check whether companies comply with the DSA’s due diligence rules.

If done right, audits can be a valuable mechanism helping independent researchers, oversight bodies and the public hold tech companies accountable. If done poorly, audits will be mere check-the-box exercises with little value that might even hurt people and entrench platform power. That is why it will be crucial for the EU get the audit provisions in the DSA right. Four major issues, drawn from past experiences with audits and general risks associated with them, need to be taken into account.

First, there is the risk of a weak auditor or an auditor with only limited powers. Facebook’s and Google’s “privacy audits” in the US can be taken as an example. Each company was subjected to legally mandated scrutiny by the US Federal Trade Commission over data protection issues. Yet, what were at times billed as “privacy audits” turned out to be mere assessments that were later criticized as almost meaningless due to vague language and powers for the regulator.

Second, auditors can, conversely, be too powerful. If their mandate is ill-fitting or too broad, the auditing company or governmental agency that oversees global corporate giants like Facebook and Google might have quite a sway in what billions of people access, read and watch on the web. This could be abused for financial or political interests. Especially authoritarian leaders might try to tip the scale in their favors by controlling big tech companies, which has some lawmakers in the EU worried as well.

Third, the auditing process itself can lack clear guidance and oversight. Without quality control, what is meant to be a safety measure and to incentivize corporate compliance can turn into a check-the-box exercise. Unfortunately, there are grave examples for this danger: “Social audits”, aiming to certify suitable workplace conditions, especially in the clothing industry, have come under intense scrutiny, after audited companies’ factories burned or crumbled, killing hundreds of workers. A for-profit auditing system with little checks can be partly to blame. In the financial industry, bad and sometimes illegal business practices could not be stopped despite auditing regimes being in place, as the WireCard case in Germany illustrates. Similarly, the international “Dieselgate” scandal showed the limitations of overseeing car manufacturers.

Relatedly, fourth, audits need to have consequences if they reveal corporate malfeasance. An audit that shows how a company failed to follow the rules cannot only result in recommendations or a blow to the company’s reputation. Fines and, more importantly, changes in business practices and compliance processes are necessary.

In all four areas, the DSA needs improvement. To address the first two points on the strength or weakness of the auditor, it is crucial that the auditor’s tasks and powers are clearly delineated. For tech companies offering people news and information spaces, a top priority should be that auditors check corporate processes, not individual pieces of content. This means that the auditor should, for instance, monitor whether companies have suitable notice-and-action mechanisms, meaningful reporting standards about their online advertising practices and recommender systems as well as consumer protection measures in place. Determining the legality of content should be left neither to corporations nor governmental regulators, but to independent courts. This would ensure that platforms are held accountable, without establishing an all-powerful auditor. The DSA draft goes in this direction, but the tasks of the auditor need to be spelled out in greater detail.

In practical terms, it is not yet clear who could and should do the auditing. Looking towards established audits in other industries can be helpful but copying existing methods risks perpetuating its flaws (like with the social audits) and not accounting for the peculiarities of tech companies. It is presumptuous to assume that big accounting firms might just take on auditing tech companies. Auditing a company like Facebook, TikTok or Snapchat is not the same as auditing a bank or an insurer. Auditors need different skills and specific technical knowledge in this field, which many existing auditing outfits might not have yet. However, it is also ill-advised to blindly rely on young companies now claiming to audit tech companies or even “algorithms”, as there is no common definition of what such “algorithmic auditing” entails. For example, the Ada Lovelace Institute, a UK-based NGO, has identified four different ways to assess algorithmic systems and those can, in turn, contain different approaches. An industry has sprung up offering to audit algorithmic systems for biases and legal compliance but there are no standards for such audits or auditors. To ensure high-quality auditors and a system of checks and balances, the EU should define what audits are supposed to achieve and what is expected of auditors. A vetting process regarding the financial independence of platforms and auditors could be discussed, as well as guidelines for oversight and quality control. Otherwise, audits risk being a fig leaf for tech companies or, worse, a cover-up for systemic failures like with some “social audits”.

Lastly, the DSA’s remedies for failed audits and non-compliance need to be beefed up. An independent oversight entity should be enabled to stop abusive business practices and sanction companies. Promisingly, this idea on enforcement as well as some potential improvements to the auditing regime have been put forth by the European Parliament. With the DSA, the EU has the chance to build an auditing regime for digital platforms from scratch. It should strive to make it as structurally sound as possible to limit terrible outcomes like those described above. This is not far-fetched, because some platforms’ business practices have been linked to genocide, election interference and invasions of privacy, just to name a few risks.

Establishing clear rules for the content of audits, standards for the auditors themselves and consequences for tech companies would be a true EU innovation. It would ensure a watch-the-watchers approach for auditors and thus alleviate legitimate concerns that governmental or private auditors (especially if paid for by the platforms) undermine democratic oversight. Taken together, this would go a long way in improving accountability for tech companies.

Julian Jaursch is a project director working on platform regulation topics at Stiftung Neue Verantwortung (SNV), a Berlin-based not-for-profit, non-partisan tech policy think tank.

Filed Under: audits, content moderation, digital services act, dsa, eu, tech policy

The Unasked Question In Tech Policy: Where Do We Get The Lawyers?

from the they-don't-grow-on-trees dept

When we criticize Internet regulations like the CCPA and GDPR, or lament the attempts to roll back Section 230, one of the points we almost always raise is how unduly expensive these policy decisions can be for innovators. Any law that increases the risk of legal trouble increases the need for lawyers, whose services rarely come cheap.

But bare cost is only part of the problem. All too often, policymakers seem to assume an infinite supply of capable legal counsel, and it's an assumption that needs to be questioned.

First, there are not an infinite number of lawyers. For better or worse, the practice of law is a heavily regulated profession with significant barriers to entry. The legal industry can be fairly criticized, and often is, for making it more difficult and expensive to become a lawyer than perhaps it should be, but there is at least some basic threshold of training, competence, and moral character we should want all lawyers to have attained given the immense responsibility they are regularly entrusted with. These requirements will inevitably limit the overall lawyer population.

(Of course, there shouldn't be an infinite number of lawyers anyway. As discussed below, lawyers play an important role in society, but theirs is not the only work that is valuable. In the field of technology law, for example, our need for people to build new things should well outpace our need for lawyers to defend what has been built. We should be wary of creating such a need for the latter that the legal profession siphons off too much of the talent able to do the former.)

But even where we have lawyers we still need the right kind of lawyers. Lawyers are not really interchangeable. Different kinds of lawyering need different types of skills and subject-matter expertise, and lawyers will generally specialize, at least to some extent, in what they need to master for their particular practice area. For instance, a lawyer who does estate planning is not generally the one you'd want to defend you against a criminal charge, nor would one who does family law ordinarily be the one you'd want writing your employment manual. There are exceptions, but generally because that particular lawyer went out of their way to develop parallel expertise. The basic fact remains: simply picking any old lawyer out of the yellow pages is rarely likely to lead to good results; you want one experienced with dealing with the sorts of legal issues you actually have, substantively and practically.

True, lawyers can retrain, and it is not uncommon for lawyers to switch their focus and develop new skills and expertise at some point in their careers. But it's a problem if a disproportionate number start to specialize in the same area because, just as we need people available to work professions other than law, even within the law we still need other kinds of lawyers available to work on other areas of law outside these particular specialized areas.

And we also need to be able to afford them. We already have a serious "access to justice" problem, where only the most resourced are able to obtain legal help. A significant cause of this problem is the expense of law school, which makes it difficult for graduates to resist the siren call of more remunerative employment, but it's a situation that will only get worse if lawyer-intensive regulatory schemes end up creating undue demand for certain legal specializations. For example, as we increasingly pass a growing thicket of complex privacy regulations we create the need for more and more privacy lawyers to help innovators deal with these rules. But as the need for privacy lawyers outstrips the ready availability of lawyers with this expertise, it threatens to raise the costs for anyone needing any sort of lawyering at all. It's a basic issue of supply and demand: the more privacy lawyers that are needed, the more expensive it will be to attract them. And the more these lawyers are paid a premium to do this work, the more it will lure lawyers away from other areas that still need serving, thus making it all the more expensive to hire those who are left to help with it.

Then there is the question of where lawyers even get the expertise they need to be effective counsel in the first place. The dirty little secret of legal education is that, at least until recently, it probably wasn't at their law schools. Instead lawyers have generally been trained up on the job, and what newbie lawyers ended up learning has historically depended on what sort of legal job it was (and how good a legal job it was). Recently, however, there has been the growing recognition that it really doesn't make sense to graduate lawyers unable to competently do the job they are about to be fully licensed to do, and one way law schools have responded is by investing in legal clinics.

By and large, clinics are a good thing. They give students practical legal training by letting them basically do the job of a lawyer, with the benefit of supervision, as part of their legal education. In the process they acquire important skills and start to develop subject-matter expertise in the area the clinic focuses on, which can be in almost every practice area, including, as is relevant here, technology law. Meanwhile, clinics generally let students provide these legal services to clients far more affordably than clients would normally be able to obtain them, which partially helps address the access to justice problem.

However, there are still some significant downsides to clinics, including the inescapable fact that it is students who are basically subsidizing the legal services they are providing by having to pay substantial amounts of money in tuition for the privilege of getting to do this work. A recurrent theme here is that law schools are notoriously expensive, often underwritten with loans, which means that students, instead of being paid for their work, are essentially financing the client's representation themselves.

And that arrangement matters as policymakers remain inclined to impose regulations that increase the need for legal services without better considering how that need will be met. It has been too easy for too many to assume that these clinics will simply step in to fill the void, with an endless supply of students willing and able to pay to subsidize this system. Even if this supposition were true, it would still prompt the question of who these students are. The massive expense of law school is already shutting plenty of people out of the profession and robbing it of needed diversity by making it financially out of reach for too many, as well as making it impossible for those who do make it through to turn down more lucrative legal jobs upon graduation and take ones that would be more socially valuable instead. The last thing we need is a regulatory environment dependent on this teetering arrangement to perpetuate it.

Yet that's the upshot of much of the policy lawmakers keep crafting. For instance, in the context of Section 1201 Rulemakings, it has been openly presumed that clinics would always be available to do the massive amount of work necessary to earn back for the public the right to do something it was already supposed to be legally allowed to do. But it's not just these cited examples of copyright or privacy law that are a problem; any time a statute or regulatory scheme establishes an unduly onerous compliance requirement, or reduces any of the immunities and safe harbors innovation has depended on, it puts a new strain on the legal profession, which now has to come up with the help from somewhere.

At the same time, however, good policy doesn't mean necessarily eliminating the need for lawyers entirely, like the CASE Act tries to do. The bottom line is that legal services are not like other professional services. Lawyers play a critical role in upholding due process, and laws like the CASE Act that short-circuit those protections are a problem. But so are any laws that have the effect of interfering with that greater Constitutional purpose of the legal profession.

For a society that claims to be devoted to the "rule of law," ensuring that the public can realistically obtain any of the legal help it needs should be a policy priority at least on par with anything else driving tech regulation. Lawmakers therefore need to take care in how they make policy to ensure they do not end up distorting the availability and affordability of legal services in the process. Such care requires (1) carefully calibrating the burden of any imposed policy to not unnecessarily drive up the need for lawyers, and (2) specifically asking the question: who will do the work. They cannot continue to simply leave "insert lawyers here" in their policy proposals and expect everything to be fine. If they don't also pointedly address exactly where it is these lawyers will come from then it won't be.

Filed Under: lawyers, tech policy

What The Election Means For Tech

from the take-your-pick dept

If Trump Wins...

For Republicans, bashing “Big Tech” has become as central to the Culture War as bashing the “Big Three Networks” once was. Demanding “neutrality” from social media companies has become what “net neutrality” has been for Democrats: the issue that sucks up all the oxygen in the room — except far more politically useful.

ISPs aren’t in the content moderation business, but social media would be unusable without it. (Just try using 8Kun or Gab!) Democrats have always struggled to identify real-world examples of net neutrality violations, but Republicans find “anti-conservative bias” everywhere, everyday. Content moderation at the scale of billions of posts is wildly imperfect, so anyone can find examples of decisions that seem unfair. But Republicans won’t settle for mere “neutrality.” They want to end Section 230’s legal protections for moderating hate speech, misinformation, using fake accounts to game algorithms, and most foreign election interference. All of these tend to benefit Republicans, so moderating them seems to prove the claim that “Big Tech” is out to get conservatives.

This won’t just be empty rhetoric anymore. Making every tech issue about “bias” will make most tech legislation impossible, but Trump won’t really need new legislation. He’ll finally weaponize the two independent agencies that regulate tech: the Federal Communications Commission and the Federal Trade Commission. Their current chairmen are traditional Republicans and serious lawyers uninterested in playing political games. But in August, Trump abruptly withdrew the renomination of Republican stalwart Mike O’Rielly after he obliquely criticized Trump’s Executive Order demanding political “neutrality” of social media. Trump quickly nominated the junior administration staffer behind the White House’s crackdown. No one should doubt that the next FCC and FTC chairmen will be Trump loyalists unencumbered by legal or constitutional scruples — and eager to turn the screws on Trump’s “enemies.” Each agency will become ever more a political battleground in which "tech" issues serve as proxy war for deeper cultural conflict.

If Biden Wins...

Trump called “Sleepy Joe” a tool of the “radical, socialist left.” Biden insisted his primary victory was a mandate for centrist pragmatism. Perhaps nowhere will Biden’s leadership be tested more than in tech policy.

Congress hasn’t passed substantial tech legislation since 1996 — and even that overhaul of the Communications Act (of 1934!) mostly reflected pre-Internet assumptions and fears. Congress used to make regular course-corrections through biennial reauthorization of federal agencies — but stopped in 1998, the year Congress became pure political spectacle. The FCC and FTC have since been left to improvise. The FCC’s long been a “junior varsity Congress” — same political baggage, no electoral accountability. The more serious FTC is trending that way. Each change of the White House means increasingly large shifts in tech policy.

These problems are as thorny as our broken judicial nomination process — and equally unlikely to be corrected through our broken legislative process. If Biden wants to be remembered for resolving them, he’ll need to do for tech what he’s proposed for the courts: convene an expert bipartisan commission with a clear mandate to develop once-in-a-century legislation, and then get ‘er done.

Biden’s nominations for FCC and FTC Chairs will reveal whether he’s genuinely interested in leading on tech — or content, like Trump and Obama, to exploit tech issues to excite his base. Strong Chairs in Biden’s mold could build Congressional consensus for significant, but viable, and therefore moderate, legislation. But if he picks bomb-throwers over problem-solvers, we’ll have four more years of the same digital culture wars — and creating a stable digital-era regulatory framework may have to wait several more presidencies.

If Trump Wins...

Republican fulmination about “anti-conservative bias” will continue to escalate. Don’t expect Republicans to pass any legislation. But they’ve always been more interested in stoking resentment among their base — and using threats of legal action to coerce large tech companies to change their content moderation practices in ways that help Republicans.

The FCC will proceed with a rulemaking to sharply limit Section 230’s protections. The only question is whether Ajit Pai issues a more restrained proposal on transparency mandates before he leaves the FCC. If not, Brendan Carr (or whoever Trump might appoint to replace Pai) could propose most or all of what NTIA has asked for. This dynamic will make it difficult for bipartisan legislation to pass amending 230, but something like the EARN IT Act and other amendments targeted at unlawful content might pass.

If Biden Wins…

Many Republicans will blame “Big Tech” for their losses, and claim that “election interference” (by Big Tech) delegitimized the new administration. They’ll do everything they can to deter content moderation beyond narrow categories of porn, dirty words, illegal content, promoting terrorism, self harm, and harassment (narrowly defined). Most Democrats want exactly the opposite: to coerce tech companies into moderating misinformation as a condition of maintaining their 230 protections. There simply is no common ground here.

So unless Democrats win enough Senate seats to abolish the filibuster, the debate over content moderation won’t be resolved anytime soon. Instead, Democrats will focus on liability for third-party content that isn’t moderated — which is what nearly all 230 cases are actually about. The EARN IT Act already has bipartisan support, as does making 230 protection contingent on removing unlawful content, and requiring websites to prove that their practices are “reasonable.” Each is deeply problematic, but practical details of real-world implementation don’t seem to matter much.

Biden has said he wants to “revoke” Section 230 “immediately,” but there’s little reason to expect repeal to happen. Instead, expect him to focus on “hold[ing] social media companies accountable for knowingly platforming falsehoods,” as a Biden spokesman put it after Trump’s Executive Order in May.

Here, more than in any other area, an expert commission is the only way out of this debate. The issue is simply too complicated — both legally and technically — for Congress to handle.

If Trump Wins...

Status quo: The FCC will maintain its hands-off approach to broadband regulation and net neutrality legislation will remain stalled in Congress. At most, a Democratic House and Senate might pass legislation purporting to revive the 2015 Open Internet Order, but Trump would veto it — and it’s far from clear that’s even a valid way to legislate. Instead, expect activists to focus on pushing for state-level broadband legislation. The courts are unlikely to allow that so long as the FCC retains broad preemption. But for some activists, the point has always been to keep the fight going forever, not to actually win in court.

If Biden Wins…

Even a centrist FCC Chair would face overwhelming activist pressure to revive the FCC’s 2015 Open Internet Order. But will they want to be remembered merely for playing yet another round of Title II ping-pong — or for finally convincing Congress to resolve this issue? There’s been a bipartisan consensus on the core of net neutrality since Republican Chairman Michael Powell gave his “Four Freedoms” speech in 2004. Democratic Chairman Genachowski pushed hard for legislation. He resorted to issuing the 2010 Open Order only after Republicans pulled out of legislative talks, calculating that they’d have more leverage after the midterms.

Resolving this issue could be the key to broader telecom reforms that Congress has been unable to tackle since passing the 1996 Telecom Act — a law based on markedly pre-digital assumptions about the future. Democrats should be careful not to overplay their hand: the D.C. Circuit decision upholding the FCC’s 2015 Order made clear that the FCC’s rules only applied to companies that held themselves out as offering “unedited” services anyway, meaning that ISPs could opt-out of Title II if they really wanted to.

If Trump Wins...

Expect more antitrust lawsuits like the Google suit. But if the Google suit is the strongest case this Administration has, they’re unlikely to win any significant remedies in court. And even if those suits do succeed, they’re unlikely to significantly address Republicans’ real concerns about “bias.” So don’t expect Republicans’ current “litigate but don’t legislate” approach to last long. Trump is famous for turning on a dime, and Congressional Republicans will face enormous pressure, especially if Democrats take the Senate, to “strengthen” the antitrust laws. Ken Buck’s minority report indicates where populist Republicans might find common ground with anti-corporate populists on the left.

If Biden Wins…

There’s enormous political pressure from all quarters to “do something” about antitrust. But don’t assume that legislation will be anywhere near as radical as what Congressional Democrats have proposed. Even Rep. David Cicilline’s much-hyped proposal to turn antitrust law on its head is careful to note that it represents only the views of his staff — not the Committee or its members.

It’s one thing for Democrats to talk about flipping the burden of proof in merger cases, but giving the government such leverage would have, for example, made it easy for Trump to force AT&T to spin off CNN — or to make editorial changes as implicit conditions of the Time Warner deal. Democrats pushing such ideas simply haven’t thought through the implications of what they’re proposing. Do they really want to make it easier for Republicans to use the antitrust laws as political weapons against the media, both new and old? A more considered, serious approach from the administration would focus on increased funding, more aggressive enforcement, and carefully targeted statutory changes.

If Trump Wins…

Status quo: Absent a court decision striking down state privacy laws on dormant commerce grounds — hard cases to win, which usually take years — Republicans will continue to insist on national privacy legislation to prevent every state from layering its own set of data rules on top of California’s. But Democrats have little political incentive to negotiate for any legislation that would displace California’s approach, which they claim as a win despite its glaring amateurishness and many practical pitfalls.

If Biden Wins…

If Democrats also take the Senate, they’ll have no excuse for not finally passing the comprehensive baseline privacy legislation they’ve talked about for years. Preemption should be an easier “give” for Democrats if they have more leverage in writing the legislation and are assured of handling at least the crucial first 3-4 years of enforcing the new law. Passing a federal law, even if it overlaps significantly with California’s, would allow the Administration to take credit for addressing the top complaint about “Big Tech”: not bigness per se, but a perceived lack of control over data collection.

If Trump Wins…

Status quo: The White House will raise legitimate concerns about Chinese tech companies giving the Chinese government access to private user data and influence over content moderation decisions. They’ll hype “deals” like TikTok’s partnership with Oracle, but Chinese entities will retain control. The only real winners will be American companies favored by the White House. It’ll be cronyist mercantilism veiled in talk of privacy and free speech. Republicans will increasingly find themselves in a quandary: the greatest beneficiaries of their push to hamstring American “Big Tech” companies will be Chinese companies that have achieved the scale necessary to expand into the U.S. market, as TikTok has done.

If Biden Wins…

Republicans will hammer the Biden Administration for any perceived weakness on China — especially when it comes to tech. Expect the White House to try to depoliticize CFIUS and treat the review process as more of a law enforcement exercise than policymaking driven by the White House. If Democrats are smart, they’ll try to insulate themselves from inevitable Republican attacks by drawing clearer statutory lines about foreign ownership of tech companies serving the U.S. market. The real test will come the first time CFIUS declines to take action against a Chinese company: will the White House intervene under political pressure?

If there’s no clear, quick election result, the stage will be set for the “mother of all battles” over online speech. If Trump and his supporters claim victory and insist that ballots that “changed the result on election night” must be fraudulent, “Big Tech” companies will apply warning labels to such content — and block paid ads making the same claims. Republicans will go absolutely ballistic. They’ll throw every legal theory they can against the wall. Don’t expect any of it to stick: website operators have a clear First Amendment right to reject, or put disclaimers around, third party content — just as newspapers do with letters to the editor. But that won’t stop Republicans from filing multiple lawsuits and complaints with federal regulators, including the Federal Election Commission. Expect the Trump administration to get creative in finding ways to “stick it” to tech companies in interregnum.

As ugly and politicized as tech policy is today, if tech policy becomes wrapped up in a “Florida recount but worse” fight, we’ll quickly come to look back at today’s tech policy battles as mild by comparison.

Filed Under: antitrust, china, donald trump, intermediary liability, joe biden, net neutrality, predictions, privacy, section 230, tech policy

It's Time To Regulate The Internet... But Thoughtfully

from the easier-said-than-done dept

The internet policy world is headed for change, and the change that’s coming isn’t just a matter of more regulations but, rather, involves an evolution in how we think about communications technologies. The most successful businesses operating at what we have, up until now, called the internet’s “edge” are going to be treated like infrastructure more and more. What’s ahead is not exactly the “break them up” plan of the 2019 Presidential campaign of Senator Warren, but something a bit different. It’s a positive vision of government intervention to generate an evolution in our communications infrastructure to ensure a level playing field for competition; meaningful choices for end users; and responsibility, transparency, and accountability for the companies that provide economically and socially valuable platforms and services.

We’ve seen evolutions in our communications infrastructure a few times before: first, when the telephone network became infrastructure for the internet protocol stack; again when the internet protocol stack became infrastructure for the World Wide Web; and then again when the Web became infrastructure on which key “edge” services like search and social media were built. Now, these edge services themselves are becoming infrastructure. And as a consequence, they will increasingly be regulated.

Throughout its history, the “edge” of the internet sector has - for the most part - always enjoyed a light regulatory yoke, particularly in the United States. Many treated the lack of oversight as a matter of design, or even as necessarily inherent, given the differences between the timetables and processes of technology innovation and legislation. From John Perry Barlow’s infamous “Declaration of the Independence of Cyberspace” to Frank Easterbrook’s “Cyberspace and the Law of the Horse” to Larry Lessig’s “Code is law,” an entire generation of thinkers were inculcated in the belief that the internet was too complex to regulate directly (or too critical, too fragile, or, well, too “something”).

We didn’t need regulatory change to catalyze the prior iterations of the internet’s evolution. The phone network was already regulated as a common carrier service, creating ample opportunity for edge innovation. And the IP stack and the Web were built as fully open standards, structurally designed to prevent the emergence of vertical monopolies and gatekeeping behavior. In contrast, from the get-go, today’s “edge” services have been dominated by private sector companies, a formula that has arguably helped contribute to their steady innovation and growth. At the same time, limited government intervention results in limited opportunity to address the diverse harms facing internet users and competing businesses.

As the cover of the November 17, 2019 New York Times magazine so well illustrated the internet of today is no utopia. I won’t try to summarize the challenges, but I’ll direct anyone interested in unpacking them to my former employer Mozilla’s Internet Health Report as a starting point. We are due for another evolution of the internet, but in contrast to prior iterations, the market isn't set up for change on its own - we need government action to force the issue.

I’m not alone in observing that the internet regulatory tide has turned. Governments are no longer bystanders. We are witnessing an inexorable rise in intervention. This is scary to many people: private companies operating in the sector worried about new costs and changes, academics and think tanks who celebrate the anti-regulatory approach we’ve had thus far, and human rights advocates concerned about future risks to speech and other freedoms. The internet has been an incredible socioeconomic engine, and continuing the benefits it brings requires preserving its fundamental good characteristics.

While new laws are not without risk of harm, further regulatory change today seems both necessary and inevitable. The open question is whether the effect will be, on balance, good or bad. If these imminent changes are done well, the power of government oversight will be harnessed to increase accountability and meaningful transparency, promote openness and interoperability, and center the future on user agency and empowerment to help make markets work to their fullest. If on the other hand these changes are done poorly, we risk, among other undesirable outcomes, reinforcing the status quo of centralized power, barriers to entry and growth, and business models that don’t empower users but instead subject them to ever-worsening garbage.

I’m an optimist; I think we’re on a course to make the internet better through good government intervention. From my perspective, we can already see the framework of the future comprehensive internet regulation that is to come, for better or for worse. Think of it as the Internet Communications Act of 2024, to use a U.S. naming convention; or the General Internet Sector Regulation, following the E.U. style. Advocates for a better internet can either sit on the sidelines as these developments continue, decrying the (legitimate) risks and concerns; or they can get into the mix, put forward some good ideas, and build strategies and coalitions to help shape the outcome so that it best serves the public’s interest.

Where are the key policy fights taking place? Geographically, over the past few years, we’ve seen the center of internet policy shift from Washington D.C. to Brussels, and that’s where we can see the future emerging most clearly today. The GDPR illustrates this shift, as despite its imperfections, it established a new paradigm for data protection that has been echoed in Kenya and California, with more to come.

This isn’t just a story about Europe, or about privacy, though. Competition reform is racing forward with major investigations and reports around the world; the United Kingdom has done perhaps the most work here, with its eye-opening Final Report of July 2020 (all 437 pages and 27 appendices of it!). Many countries are undertaking antitrust investigations of specific companies or reevaluating the modern day fitness of their competition legal frameworks.

Meanwhile social media companies and, more broadly, internet companies as intermediaries for user communications online, have come under fire all around the world, with Pakistan and India making some of the most aggressive moves so far. The European Union is advancing its own comprehensive regulatory vision for online content through the Digital Services Act, just as the United States is reevaluating its historical intermediary liability safe harbor, Section 230.

In the United States, we’re seeing a moment that bears many similarities to the late 1960s in the buildup to the Clean Air Act of 1970. That law had powerful bipartisan support, and commensurate industry opposition. Just as with those early climate political wars, advocates for reform are facing the weaponization of uncertainty as a tactic to resist government intervention, with the abuse of data and science and metrics to advocate for an outcome of inaction. As with climate change, inaction to address the harms presented by the internet ecosystem today is itself is a policy choice, and it’s the wrong one for the future health of the internet. I believe change will come though, and as with the Clean Air Act, eventually we'll look back and appreciate the sea change we made by intervening at a critical moment. (Sorry, that pun was mostly inadvertent - and, in fact, a bit unfortunate given the current state of play of climate politics and the climate crisis… but that’s a piece for another author, another day.)

Considering that the Clean Air Act established the Environmental Protection Agency, perhaps in the U.S. we need what Harold Feld and his colleagues at Public Knowledge have been calling for in the Digital Platform Act, establishing something akin to an Internet Protection Agency. Or perhaps, as I’ve supported in the past, we need a revamped Federal Trade Commission with greater authority, building on that agency’s success at integrating technologists into its consumer protection work. Increasingly, I’m inclined towards the idea that what we need is an expanded Federal Communications Commission, given that agency’s relatively broad authority (no matter how circumscribed by the current leadership) and the nature of this evolution as advancing what feels like modern day communications infrastructure. The United Kingdom has decided to go in this direction for content regulation, for example, appointing OFCOM to manage future “duty of care” obligations for online platforms. The technologies and businesses are very different between the traditional telecom sector and the internet ecosystem, though, and substantial evolution of the regulatory model would be necessary.

Regardless of where you situate the future policy making and enforcement function within the U.S. government, we’re still at the normative development stage on these policy issues. And frankly, the internet policy world needs some new ideas for what comes next. So, over the next few posts in this series, I’m going to share a few fresh thoughts that I’ve been mulling over. Stay tuned!

Filed Under: internet policy, internet regulations, tech policy

Tech Policy In The Time Of Trump: Mid-2020 Edition

from the this-is-not-a-drill dept

We're not partisan here at Techdirt. We have our personal preferences, certainly, but technology policy tends to transcend normal political divisions. We have been just as likely to see good policy proposals from Democrats as Republicans, and bad ones just the same. What we care about here is ensuring that the founding principles of liberty articulated by the Constitution can be meaningfully applied in a modern, technology driven world. That value is not a partisan one. We don't care who is the hero who makes sure we do not spiral into dystopia; we just want to make sure we don't. And our job is to point out how we may already be.

For the first years of the Trump Administration I took to writing annual summaries of how things might shake out on the tech policy front given the current make-up of government. And then I stopped. By then we had children in cages, and suddenly trying to read the political tea leaves seemed like a remarkably pointless exercise. Also unhelpful, glib, and potentially even harmful. There is no point in acting as though everything is politics as usual when the situation has become anything but. A horrific line had been crossed, and it wasn't even the first. But unless everyone recognized how dangerously abnormal politics had become, it would certainly not be the last.

And yet it sadly appears that politics has chugged on as usual. And as a result more uncrossable lines have, indeed, been crossed. As was inevitable, yesterday's rounding up of immigrants became today's rounding up of American citizens.

So if we're going to talk about tech policy in the time of Trump, we need to be worried about what will happen tomorrow. Our paramount concern therefore needs to be ensuring that tech policy enables us to check further misuse of power. It certainly must not help further entrench it. So let's dig in and see where we are. In my original posts I distilled my comments into four general policy areas that now seem trivially pedestrian. The breakdown implies that we can simply focus on a particular area and its localized political skirmishes and leave the others for another day. Which is silly; when the whole house is on fire focusing on how an individual room may be decorated is not going to be an effective way of addressing the actual crisis at hand. But for the sake of uniformity, I might as well continue with the same organization.

Free speech/copyright. President Trump is infamous for lying. But there's one thing he said that has been true: that he was going to "open up" our libel laws to make it even easier to sue someone for their expression. In fact he's gone even further than that, undermining every expressive right the First Amendment guarantees, including the right to protest, which he has now co-opted federal forces to physically attack.

But as for making it easier to sue people for their speech, he has done that by example, as he and his confederates have launched specious lawsuit after specious lawsuit against speakers, platforms, and traditional press and publishers to challenge their critical (and generally completely lawful) contributions to needed public discourse. On more than one occasion he didn't even wait for them to make the speech before suing to shut them down. It turns out he didn't need to change a single law to effectively obviate the right to free speech; he just had to drown out the voices speaking against him with a flood of litigation in order to silence them.

The running theme throughout this commentary is that lawmakers should not waste time with the traditional horse-trading that fills the corridors of our capitols as policy normally gets set. We do not have the luxury, here in 2020, of developing policy that would optimize life in America; at the moment our only task is to save it. And that requires recognizing the urgency of the moment, because if you don't vote against totalitarianism when you have the chance, you may never have the chance again. So while there are plenty of areas where ordinarily lawmakers should act to articulate good policy in law, including on the tech policy front, right now there is no policy value more important for lawmakers to express in law than preserving the right to expression.

In particular, they should waste no time getting effective anti-SLAPP laws on the books. Every state needs one (looking at you, Virginia…). As does the entire federal legal system, so that we can ensure that federal courts can no longer be the refuge of the censor eager to chill the speech of their critics. Do not pass go; drop almost everything else to get this done. Because if we cannot ensure the public's right to speak out against oppression, then we all but guarantee that oppression to prevail.

Which brings us to copyright, the deck chairs on this sinking Titanic. Could copyright policy be better attuned to the economics of producing and consuming expression in the 21st century? Perhaps. But at the moment that policy challenge is largely irrelevant. The very ability to create and consume expression is itself under fire, and our sole goal needs to be to preserve it. Copyright law inherently is about controlling expression, and that's the last thing we need to be empowering anyone to do.

Mass surveillance/encryption. We have been warning for years against giving the police the unchecked power to invade people's privacy. The ability people need to have to keep their personal affairs free from the prying eyes of the government is no less essential to preserve now, in the 21st Century, than it ever was in the 18th. If anything it is even more important to hold fast to the constitutional barriers that prevent the government from readily invading our private lives now that so much of those lives – personal choices, associations, ideas, etc. – are so casually captured in digital records so easy for the government to track.

We also challenged the excuses law enforcement gave for why they needed this exceptional ability to bypass the basic constitutional tenets normally prohibiting them from helping themselves to this data. They were nearly all predicated on the assumption that the state authority was the good guy and that it needed to save the public from the bad guys hiding among us. We challenged these arguments because these assumptions were inherently unsound – as the news lately has been daily proving.

It is proving us right on a local level – see all the examples of violent police behavior that have inspired weeks and weeks of protest – and increasingly on the federal level, as President Trump unleashes federal forces against those who speak against him. These are not the acts of benevolent protectors we can safely entrust with the awesome power of the state, unchecked. These are the acts of the sorts of bad actors that our civil liberties were designed to protect us from. But when we bless digital surveillance programs that ignore our constitutional protections, and undermine the encryption technology that allows us to make the protections meaningful on a practical level, we make ourselves vulnerable to abuses of power by eliminating our defenses against them. No policymaker committed to the enduring idea of American democracy can possibly advocate in good faith or with intellectual coherence for any policy agenda that continues down such a destructive path. When a powerful state actor has already abused his power against the public, it makes no sense to give him more power to continue that abuse, and it is beyond naïve to believe it wouldn't be so abused. Not when we can already see in painful clarity how much it already has.

Net neutrality/intermediary liability. The political corruption of antitrust enforcement has poisoned this entire policy area. Net neutrality stands for the principle of non-discrimination on the part of service providers enabling the public's online expression. For Internet services where there is no meaningful competition, regulation committed to maintaining that principle is important. It is not, however, useful to enforce that principle in areas where there is competition. In fact, it presents its own harm to expressive liberty when these service providers are denied the freedom to discriminate. Having some sort of principled, meaningful, and consistent way of identifying which service providers are which is therefore crucial. Yet that is not what we've got. Instead we have angry, reactionary, inconsistent, unrealistic, unwise, and often unconstitutional policy demands from both sides of the aisle.

The upshot is that people's ability to speak freely online is at risk. The only way we can protect that ability is by protecting and promoting the existence of the service providers that enable it. Which means not only encouraging the competitive market needed to ensure there are enough avenues for basic Internet access, but also ensuring that there are no barriers limiting our supply of other platforms. Unfortunately, we are currently doing the complete opposite on both fronts, and in the process directly preventing needed lawful discourse.

In some cases it's because people can't get online at all. Either they don't have any service due to a failure of broadband competition policy, or, worse, because we have forced service providers to deny their expression. In those cases sometimes we've used copyright as the rationale to bludgeon service providers into removing speech or even kick off users from their services entirely (and regardless of whether they had actually violated any law). But it's also not the only way we have scared providers into pre-emptively kicking off users or their expression with the plausible fear of being held liable for that expression. The inscrutable FOSTA has already directly chilled platforms and the lawful expression they facilitate, and now lawmakers are threatening even more cumbersome regulation to do even more to terrify platforms into removing user expression, if not cease to exist entirely.

When the United States of America is teetering towards autocracy, it is not the time to impose any policy that would inhibit the public's ability to use the Internet to speak out against it. But that's what most of the proposals being put forth that target service providers threaten to do, from undermining their Section 230 immunity, to further conditioning their DMCA safe harbor, to even encumbering them excessively with ill-tailored regulations on the privacy and security front. Any policy that will have the effect of reducing the supply of online outlets or constraining their ability to enable protected speech – as all these policy proposals do – will only invite disaster when it erodes our ability to use the Internet to speak out against abuses of power, including state power. They all are a mistake.

Internet governance. In his tenure President Trump has accomplished two things: (1) eroding international cooperation and the US's commitment to the public international law that supports it, and (2) empowering autocrats. In the previous posts I lamented how Trump has also undermined the organs enabling international cooperation, but maybe it's just as well. Internationalism inherently wrangles input from around the globe, and that input increasingly includes hostility to freedom. The United States should be standing against this trend. Our tradition of liberty should be our chief export. But so long as all we are busy modeling is our indifference to freedom, if not also our abject surrender of it, then there may be no point in engaging with other national governments who would hasten its demise for everyone by giving them the institutional foothold from which to do it.

Filed Under: copyright, donald trump, encryption, free speech, intermediary liability, mass surveillance, net neutrality, tech policy

Why Doesn't Joe Biden Have Any Tech Policy Advisors?

from the it's-not-like-they-aren't-around dept

While in Congress and then in the White House, Joe Biden was no friend of the internet. Indeed, while he was a Senator, he was a reliable vote on whatever terrible copyright bill Hollywood pushed for, and then in the White House he was, again, a giant proponent of Hollywood's agenda. He convened a "piracy summit" that was only representatives of legacy industries -- with no one representing internet companies, independent artists who use the internet, or any of the many artist and consumer groups out there. He's also argued that get rid of Section 230 altogether, mainly because he doesn't understand what it does, and he's "never been a fan of Facebook." And, when given the opportunity to push back on Donald Trump's misguided attacks on 230, Biden still argued that he supported "revoking" the law entirely.

When I wrote about his bizarre attack on CDA 230, some people I know in the tech policy world reached out to say that I was being too harsh on Biden for saying he wanted to "revoke" 230, saying that he clearly didn't mean exactly what he explicitly said, and that as he started to get better tech policy advice, they were sure he'd say fewer stupid things about tech policy. This is not a particularly strong vote of confidence (not that the other guy is any better on tech policy). Now, Protocol is reporting that the Biden campaign appears to have no tech policy people on the campaign:

The presumptive Democratic nominee does not have a top adviser focused on tech policy, according to campaign materials and party veterans, including some who have offered informal advice to Biden on tech.

The lack of tech leadership in the campaign marks a contrast with his Democratic predecessors, as well as some of Biden's competitors in the Democratic primary, and reflects a belief that issues like online misinformation, privacy regulation and alleged anticompetitive behavior by tech's giants will not be pivotal to unseating President Trump. To some advocates for reforming the tech industry, though, Biden — whose written policy prescriptions largely avoid venturing into tech — is missing an opportunity to lead in areas that have gained new prominence and urgency.

I'm not convinced that even if he was getting advice on tech policy that it would be good advice (or that he'd take the good advice). But the fact that his campaign doesn't think this is an important issue is both notable and surprising (and a bit disappointing). I certainly don't think that tech policy is something that will drive the electorate one way or the other (unfortunately!), but is is clearly a major issue for the next decade, and ignoring it entirely seems incredibly, ridiculously short-sighted.

"Nobody's talking to Joe Biden about tech policy," said one veteran of several Democratic campaigns, who spoke on condition of anonymity in order to talk candidly. "If you look at Biden's inner circle, Obama and Hillary always had people in their inner circle who were native to tech issues, and that hasn't been the case with Biden."

Indeed, Biden's long-term love affair with Hollywood seems to have resulted in a lot less interest from the tech community. Oh, and apparently he's tapped a former top MPAA exec as his deputy campaign manager:

There are still some grudges in the tech industry over Biden's fervent support of SOPA-PIPA, two Hollywood-backed anti-piracy laws that the industry protested in 2012. "Biden has always been viewed as sort of Hollywood's guy on tech and telecom policy," the Democratic campaign veteran said. Biden's deputy campaign manager for communications strategy, Kate Bedingfield, was a former vice president of communications with the Motion Picture Association of America, a trade group that counts Disney, Paramount, Sony, Universal and Warner as members.

"The fact of the matter is, the vice president, when he was in the Senate, was an [intellectual property] guy," Sohn said. "His focus in this area was more on copyright patent trademark than it was on broadband and telecommunications."

The article concludes, somewhat obviously, that the election itself is not going to turn on tech policy, and so if the focus is solely on getting elected in the fall, Biden just might not need tech advisors. But tech policy is going to be super important, and so far Biden has demonstrated a weak grasp on the issues at best (saying he wants to get rid of CDA 230 is simply crazy talk). Given that so much of the emphasis on Biden's campaign the last few months has been that he'd actually bring some competent people into government, the fact that he has no tech policy plan at all is at least a little disturbing -- especially when technology is so key to the economy going forward.

Filed Under: advisors, copyright, joe biden, presidential campaigns, presidential politics, section 230, tech policy