Potential Biden Administration Early Executive Actions

In the US Congress, the Democrats are expected to retain control of the House of Representatives, albeit by a slimmer majority. The US Senate will be closely divided and control likely will not be determined until early January after two “run-off” elections for both Senate seats in Georgia occur on January 5, 2021.

The Biden-Harris team has indicated several areas for legislative and executive branch action in the coming year. This memorandum reviews several likely priorities of the incoming administration that may represent challenges or opportunities for businesses in the technology, media, and telecommunications sector.

Antitrust

The Trump Department of Justice’s (DOJ) lawsuit filed against Google places the incoming Biden DOJ in a difficult spot – walking back the suit may anger activists and either strengthening or weakening it opens political appointees to second guessing if or when the suit, which may extend for years, hits rough spots. Continued scrutiny and congressional action teased in the second half of 2020 both have immense implications for the technology sector ecosystem and beyond. Antitrust scrutiny could also affect potential for new partnerships or acquisitions of smaller entities.

Media Ownership Rules

The Supreme Court has agreed to review the Prometheus IV case, creating the potential to clear significant hurdles for implementing less-restrictive media ownership reforms. But underlying concerns about preserving and expanding diverse voices persist and negative attention around a Supreme Court victory could create a policy backlash in the new Washington dynamic.

Broadband Deployment

The pandemic has heightened concern about the digital divide. For most Americans, access to high speed internet is now not just critical for streaming and gaming but also education opportunities, continued employment, and even health care. As exciting new technologies like 5G wireless progress, expect more questions about lack of broadband access, which federal agencies should run connectivity programs, how to deploy subsidies, and even reforms for Universal Service Fund fees that fund efforts to connect the underserved. Expect a Democratic majority at the Federal Communications Commission (FCC) to be aggressive in taking action.

Net Neutrality

Expect another knock-down, drag-out fight over rules of the road for the internet. While an effort to restore more rigorous Title II regulations putting broadband providers on the precipice of price regulation (but not quite there) seems likely, tech companies that have long championed stringent net neutrality rules now have other challenges and the resurrection of this issue may spur inconvenient conversations for them this time around. For example, net neutrality proposals may boost calls for platform neutrality, which could push some tech companies closer to public utility style regulation.

Platform Liability Protection Reforms

With voices on both the left and right wanting more accountability from technology companies, well-heeled trial lawyers look especially well-positioned to benefit from any changes to liability protections granted through Section 230 of the Communications Decency Act. While the discussion over Section 230 has been politically polarized, some proposals have bipartisan support and powerful cheering sections.

Privacy

Legislative efforts to enact a federal privacy statute have had an underreported level of bipartisanship even as disagreements over preemption of state laws and private right of action have blocked agreement. The passage of Proposition 24 in California, which further tightens California’s complicated California Consumer Privacy Act (CCPA) law, and pressure from other states enacting privacy statutes should renew a push for a federal law.

Tech Labor

Passage of Proposition 22 in California, a measure championed by ride share tech companies that classifies drivers as contractors and not employees, is now being hailed as a model for a federal legislative push. From warehouse workers at eCommerce businesses to delivery services, expect significant activity on labor rules for workers in the new tech economy.

Immigration

As a priority, we expect immigration and guest worker policies to be high on the agenda. Making cases for economic needs, worker fairness, and ensuring new policies do not hurt current American workers will be key to shaping new initiatives of importance to the technology sector. Vice President Biden may be quick to overturn Trump’s executive order on restrictions to high-skilled immigration.

Pandemic Oversight

The new administration may be eager to work with allies in Congress to shine light on perceived abuses and mismanagement of government efforts related to the current pandemic. Interactions between company and government officials may come under scrutiny. Executives at companies that benefited directly or indirectly from government funds or decisions, and particularly companies that have prospered through the pandemic, may get starring roles.

Relationship with China

Vice President Biden shares the current administration’s sentiment of being “tough on China,” and will likely look to prove early on how his leadership can be more effective at cracking down on theft of technology and intellectual property. In addition to more concrete trade negotiations, Biden will likely take action to encourage supply chains less reliant on Chinese goods.

Trans-Atlantic Differences

Ongoing issues that will require Biden’s attention include the recently overturned EU-US Privacy Shield agreement and threats of digital service taxes – both EU-driven debates on dictating terms to U.S. tech companies. While Trump has been militant in opposition to various EU tech policies, there is an underlying current of bipartisan support to protect American enterprise. Much like his approach to China, Biden will seek to leverage bipartisan support for pushing back on such intimidations including new digital taxes- and to establish a record of action. While Biden has stated that the U.S. should be “setting standards not unlike the Europeans are doing relative to privacy,” he’ll face pressure to protect American tech companies.