Antitrust, content moderation to dominate tech policy in 2021

Lawmakers are expected to tackle key tech policy issues in 2021 following a tumultuous year that strained the Washington-Silicon Valley relationship.

Congress will likely introduce or move forward on legislation addressing antitrust concerns in the tech industry, while continuing its split crusade on content moderation.

Here’s a look at how those two issues could play out in the coming year.

Digital monopolies

The coronavirus pandemic has underscored and amplified the power held by the country’s biggest tech companies, all of which have seen their positions in the marketplace strengthen as millions of Americans work, shop and socialize online from home.

The industry’s strength has also increased as other sectors contract.

Congress has been laying the groundwork to start addressing that growing concentration of power. Democrats on the House Judiciary Committee’s panel dealing with antitrust released a scathing report this fall, compiled over the course of a year, detailing how Amazon, Apple, Facebook and Google have stifled competition in the digital marketplace.

The report offered several recommendations, including requiring large companies to pursue a single line of business, increasing funding for antitrust regulators and raising the bar for some mergers.

Some degree of bipartisan consensus appears to have been reached, though there are hurdles on the horizon in terms of legislation.

Rep. Ken Buck (R-Colo.), who released a report of his own just days before Democrats introduced theirs, told The Hill in a Nov. 30 interview that he’s set to meet with subcommittee Chairman David Cicilline (D-R.I.) in the coming weeks to begin charting a path forward.

“My guess is that next year we drop, hopefully, a new bipartisan bill,” Buck said.

The Colorado Republican said he expects funding for antitrust regulators at the Federal Trade Commission (FTC) and Department of Justice (DOJ) to be allocated through the annual appropriations process, and that any bipartisan bill should focus on wrestling control of antitrust law away from the courts.

The GOP-controlled Senate has focused less on antitrust, although several proposals have been floated by Democrats to improve enforcement.

Sen. Amy Klobuchar (D-Minn.), the ranking member on the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights who could wield the gavel next year if Democrats sweep the Senate runoff elections in Georgia on Jan. 5, said last week that “we must overhaul antitrust laws and enforcement to prevent companies with monopoly power from stifling start-ups and hurting consumers.”

“I have introduced legislation to update and strengthen the antitrust laws to ensure enforcers have the tools they need to protect competition,” she said in an emailed statement on Nov. 30. “I will push these proposals forward in the next Congress.”

As Congress debates how to move forward on antitrust, the DOJ and FTC have already taken steps against tech companies by alleging anti-competitive behavior. The DOJ is pursuing a case against Google, and the FTC is expected to file a case against Facebook.

The big players in the tech industry will undoubtedly push back, and many others argue Washington has overstated the extent of market consolidation.

Rus Yusupov, co-founder of Vine and HQ Trivia, told The Hill he doesn’t think it’s any harder to break out in tech now than it was 10 years ago.

“Now, more than ever, there’s an opportunity for a small team of designers and engineers to come together, build something new that people haven’t seen before and really improve on the experience,” he said. “New policies, new rules, new laws around building a consumer tech platform can severely limit the growth of startups.”

Content moderation

The 2020 election perfectly encapsulated the deep partisan divisions over how social media firms should moderate content on their platforms.

The first Senate hearing on tech after Election Day featured Democrats criticizing Facebook’s Mark Zuckerberg and Twitter’s Jack Dorsey for alleged failures to handle political misinformation.

Republicans, on the other hand, raised concerns about anti-conservative bias by tech platforms, an oft-repeated allegation that has not been substantiated.

The anger around perceived targeting of conservative voices has coalesced around the GOP push to revise or even scrap Section 230 of the Communications Decency Act, the landmark 1996 law which gives internet companies immunity from lawsuits for content posted on their sites by third parties and allows them to make good faith efforts to moderate content.

But congressional Republicans for the most part are not backing President Trump’s push to repeal Section 230 in this year’s National Defense Authorization Act, despite the president’s threat to veto the entire defense policy bill if it doesn’t do away with protections for internet companies.

While Trump’s executive order aimed at revising Section 230 is likely to either die in the courts or simply be ignored by President-elect Joe Biden, legislation on the issue is likely to be reintroduced in the new Congress.

The two bipartisan bills addressing Section 230 — the EARN IT and PACT acts — appear to have the most viability moving forward, especially given the influence of the lawmakers backing them.

The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT), co-sponsored by Sens. Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.), would tie Section 230 protections to efforts to combat child sexual abuse material. It would also allow federal and state claims against online companies that host child exploitation content.

The bipartisan Platform Accountability and Consumer Transparency (PACT) Act, led by Sens. John Thune (R-S.D.) and Brian Schatz (D-Hawaii), would require greater transparency around platforms’ decisions to moderate their users’ content.