The Potential Benefits of Biden’s Call to Modernize U.S. Tech Policy

In a January 11 opinion piece published in the Wall Street Journal, President Joe Biden appealed to members of the new Congress to come together to pass a series of measures to regulate big tech, such as comprehensive privacy legislation, limits on the immunity from responsibility of online platforms for the content they host, and rules reducing the competitive advantages of the largest platforms.

The European Union has enacted legislation in all three areas in recent years, and if passed by Congress, the proposed measures would benefit both Americans and members of the broader transatlantic community.

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While the last Congress drafted bills on all the issues outlined by Biden in his op-ed, none were brought to a full vote. The House Energy and Commerce Committee made progress on the American Data Privacy and Protection Act (ADPPA), but then-Speaker Nancy Pelosi blocked floor consideration of the bill, and Chair of the Energy and Commerce Committee Senator Maria Cantwell (D-WA) considered parts of it too weak.

Senator Richard Blumenthal’s (D-CT) Open App Markets Act and Senator Amy Klobuchar’s (D-MN) American Innovation and Choice Online Act, both of which concern competition in the tech market, also made progress but failed to cross the finish line in the last Congress. They would prohibit tech companies from conduct such as preferencing their own products and services over those of rivals.

Thanks to Section 230 of the Communications Decency Act, platforms currently have immunity from liability for content they host. In recent years, several pieces of legislation have proposed removing Section 230’s protections when hosted content may lead to criminal conduct, but many Republicans have resisted this, alleging that conservative political speech is already being repressed by platforms.

If a comprehensive U.S. privacy law were passed, it could potentially better accommodate the fast-evolving applications of artificial intelligence (AI) than the EU’s General Data Protection Regulation (GDPR); more than six years after their adoption, some of the GDPR’s policy judgments are already beginning to look outdated. For instance, the development of AI technologies, which depend on access to broad data pools, could be constrained by the GDPR’s strict limits on reusing data and its cautionary approach toward risk.

While the potential domestic and transatlantic benefits of a major tech policy overhaul are immense, Congress will need to muster quite a bit more bipartisanship than it has of late if those benefits are ever to be realized. Lawmakers should at the very least be able to pass legislation that better protects children’s privacy online, as this issue has long had support on both sides of the aisle.