The 118th Congress is officially in session, and President Joe Biden came prepared with his Big Tech syllabus.
Biden reached across the newspaper aisle Wednesday, authoring an op-ed in the conservative Wall Street Journal opinion pages that calls on Democrats and Republicans to “pass strong bipartisan legislation to hold Big Tech accountable.” His pitch centers on a few hot-button issues that gained some traction last year but didn’t result in bills reaching the Resolute desk: data privacy, child safety, algorithm regulation, antitrust law, and liability for hosting certain kinds of harmful content.
The piece is a classic Beltway tone-setter, aimed at capitalizing on the brief era of good feeling that dawns on Washington every two years in January. In reality, though, most of Biden’s legislative tech agenda is most likely DOA.
Antitrust bills aren’t expected to gain traction after a hearty bipartisan push last year. Proposals for reforming Section 230, the law generally protecting online platforms from liability for content posted on their sites, aren’t anywhere close to becoming law. Members of Congress barely understand how algorithms work, let alone how to regulate them. Plus, Republicans appear more focused on flogging Big Tech companies for their content moderation decisions and communications with the White House.
Still, the coming year is shaping up to be a pivotal one in the U.S. for one of Biden’s pet projects: data privacy.
While there’s minimal momentum for legislation setting national data privacy standards—a bipartisan bill introduced in Congress last year petered out pretty quickly—federal regulators and a handful of states are poised to take up the mantle in 2023.
In Washington, the newly emboldened, Democrat-led Federal Trade Commission is expected later this year to propose new rules aimed at limiting data mining and curbing corporate profiteering off of users’ personal information. The FTC took a first step toward issuing regulations in August 2022, soliciting feedback from the public about “whether new rules are needed to protect people’s privacy and information in the commercial surveillance economy.”
Any such proposals would inevitably draw complaints from Republicans about Biden’s bureaucracy circumventing Congress’s policymaking role. Legal challenges likely would follow, too, particularly in light of the conservative U.S. Supreme Court’s ruling last summer on federal agencies exceeding their authority via regulatory rulemaking.
But should the FTC act, it would mark a major federal response to a pressing issue for most Americans. Multiple national polls have found a solid majority of respondents are concerned about data privacy and favor more federal intervention to protect them. (The surveys generally don’t ask respondents about specific policies, the biggest sticking point between Democrats and Republicans on Capitol Hill.)
While the FTC ponders its next steps, several states are already ahead of the curve.
California’s landmark Privacy Rights Act, passed via a statewide referendum, went into effect at the beginning of January, ushering in the nation’s broadest policy on digital user data. The law limits what kind of information some businesses can collect; sets new notification requirements for companies mining digital data; and gives users additional rights related to their personal online information. (The law doesn’t become enforceable until July.)
A similar law took effect this month in Virginia, where the Democrat-led state government pushed through a similar but less sweeping bill in 2021. The law also forces businesses mining large amounts of user information to notify users of their collection practices and give consumers the opportunity to delete or correct personal data, among other provisions. (Questions remain about the Republican-led executive branch’s commitment to enforcing the law.)
Colorado and Connecticut are set to implement their own data privacy laws this summer, while Utah’s new statutes take effect at the end of the year.
In his op-ed, Biden said the U.S. needs “clear limits on how companies can collect, use, and share highly personal data—your internet history, your personal communications, your location, and your health, genetic, and biometric data.” Congress almost certainly won’t deliver on his appeal this year, but 2023 still could go down as a milestone year for online privacy.
Before getting to the rest of today’s Data Sheet, a correction on yesterday’s edition is in order. Owing to a mistake on my part, I wrote that Disney’s operating losses tied to ESPN+ were $1.6 billion in fiscal 2022. In fact, that figure represented Disney’s ESPN+ expenses, not its losses. Disney’s annual financial report shows it did lose money on ESPN+ last fiscal year, though the company doesn’t detail profits and losses for each of its streaming platforms. My apologies for the error.
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Jacob Carpenter
