How Much Should Tech Giants Fear the Biden Administration?

Yinchen Niu/Variety Intelligence Platform

President Biden has been in office for three months, and it may seem like it’s already become clear how tough his administration will be on Big Tech in the years ahead.  

For instance, outspoken Big Tech critics Tim Wu and Lina Khan have been named to the National Economic Council and FTC, respectively.   

Moreover, congressional Democrats have held discussions with the White House on ways to make social media companies more accountable for misinformation spread, Reuters reported in February.  

And more recently, Politico reported that the Biden administration was considering Jonathan Sallet (former FCC general counsel during Obama’s second term) and Jonathan Kanter (an FTC attorney during Clinton’s second term) for the role of assistant attorney general of antitrust.  

But in reality, much of how the Biden administration plans to approach regulating Big Tech still seems up in the air.  

There’s just still a lot we don’t know on how the Biden administration will act on key tech industry issues (like Section 230), Politico’s Emily Birnbaum wrote last week. 

Echoing this sentiment was UCLA Internet law professor and former Washington State chief privacy officer Alex Alben.  

“I don’t think we have a good roadmap right now of the administration’s approach to tech issues, mainly because they have been so focused on COVID relief and infrastructure and other things that are pending,” Alben told Variety Intelligence Platform

This makes sense when you consider that while Biden has signed more than 50 executive actions since taking office, most of these orders have been concerned with COVID-19 issues, immigration and equity rather than technology specifically.  

But even with this Biden-tech industry uncertainty, it seems safe to rule out certain potential sweeping Big Tech regulations that would address antitrust violations and the handling of misinformation, without a doubt two of the Big Tech issues most scrutinized by Capitol Hill over the past year. 

When it comes to antitrust issues with tech giants, it would be surprising if any calls to break up technology giants gained serious traction over the next few years. 

For one, just look at the mess the half-baked Trump effort to ban TikTok caused. Companies ultimately wasted time structuring deals at the behest of the White House at a time when government officials could have been drafting new COVID-19 relief efforts. Kevin Mayer left top Disney and TikTok jobs for no payoff.  

This debacle could make similar future pushes to break up tech companies a more difficult sell to some in Washington.  

But it’s not even clear Biden would be in favor of going that far in the first place. Alben believes based on what we know now of the Biden administration, there won’t be as much of an effort to break up Big Tech as much as focus on more specific acts of “anti-competitive behaviors and malfeasance.” 

The Biden administration “will take a very balanced approach to the technology industry,” as they are mindful the tech industry is a big economic engine, Alben said.  

“Nobody wants to kill the goose that laid the golden egg.”  

Meanwhile, in terms of addressing how Big Tech platforms handle misinformation, one sweeping act would be for the administration to push to strike down Section 230. That would undoubtedly spur tech companies to more tightly monitor what content goes on their platforms. 

But this type of drastic change seems unlikely, given repealing Section 230 could make tech giants hurt many that nobody (on the right or left) ever intended to punish, as I recently argued leading up to the March Big Tech misinformation hearing.  

University of Georgia media law professor Jonathan Peters speculated in a March interview with the New York Times that Biden “does not have even the Democratic votes to go through with a full revocation” of Section 230.

How the big antitrust cases against tech giants progress could shed some more light on Biden’s Big Tech thinking, but don’t expect any big regulatory actions stemming from these cases any time soon. 

The Justice Department sued Google in October over alleged anticompetitive practices to bolster its search and ads business, but a judge in late December said the case likely won’t go to trial until late 2023.  

That was one of three separate antitrust cases filed against Google in 2020.  

Meanwhile, the FTC and 48 state attorneys general (representing 46 states) sued Facebook in December over alleged anticompetitive behavior, citing the company’s blockbuster acquisitions of Instagram and WhatsApp. Facebook has referred to these lawsuits as “revisionist history” and in March filed motions to dismiss the lawsuits. 

These cases are tangentially related but ultimately in a different ballpark from the 16-month investigation into the market power of Amazon, Apple, Facebook and Google conducted by Democratic-led House antitrust subcommittee (read our analysis of the committee’s findings). 

That investigation culminated in the subcommittee releasing a 449-page report ultimately intended to act as a roadmap for future tougher antitrust legislation rather than something that immediately results in a fine or regulation. 

The percentage of U.S. adults on average who believe tech companies should be more tightly regulated (surprisingly) didn’t increase from 2018 to 2020, a June 2020 Pew Research Center survey suggested.  

But it’s far from guaranteed that this sentiment will contribute to exonerating Big Tech from its misdeeds of the past in the eyes of the Biden administration.