The 118th Congress will face some long-standing policy challenges as well as a few new ones but may not get to the finish line on any of them — even the federal data privacy bill that has bipartisan backing in both chambers.
Lawmakers have been debating antitrust legislation aimed at the tech industry, social media content moderation policies and the online spread of disinformation for the last two Congresses but have yet to send any legislation to the president’s desk. With Republicans taking the House majority, the hill may become steeper.
“We are closer with Republicans and Democrats, but we are again in this space where some devil-is-in-the-details are still being worked out,” said Nicol Turner Lee, director of the Center for Technology Innovation at the Brookings Institution, about data privacy legislation. “My hope is that this is not one of those issues where we have to start from scratch.”
After years of debate and discussion, the House Energy and Commerce Committee in July voted 53-2 to approve compromise bipartisan data privacy legislation. The bill would establish a national standard for data privacy and has the backing of Sen. Roger Wicker, R-Miss., the top Republican on the Senate Commerce Committee.
The bill may have bipartisan support, but lawmakers from California, led by Speaker Nancy Pelosi, said the bill doesn’t give the state, the first to pass a data privacy law, enough freedom to set its own tougher rules. Four other states have passed similar laws, and five others are considering comparable measures.
Pelosi didn’t bring the measure to the full House. She will no longer be the speaker or the Democrats’ House leader in the 118th Congress.
That measure “really proved that Congress is a lot closer to a bipartisan compromise than I think a lot of people, including myself, would have believed, say in early 2020,” said Ashley Johnson, senior policy analyst at the Information Technology and Innovation Foundation. “So I would expect more movement on privacy next year.”
Critics say the measure would give too much room to California and wouldn’t really be a national standard. Carl Szabo, vice president at NetChoice, a trade group representing top tech companies including Amazon, Google, Meta and Yahoo, is one of them.
The bill failed “to create a national standard and instead created carve-outs for preferred states like Illinois or California,” Szabo said.
Szabo hopes that Republicans — with Rep. Cathy McMorris Rodgers, R-Wash., expected to become chairwoman of the House Energy and Commerce Committee — would start from scratch, going back to a discussion draft that committee Republicans released in November 2021. The draft called for one national standard that would not allow states to set privacy rules different from a national one.
Johnson said lawmakers from California and other states that want to ensure that their privacy bills aren’t overtaken by a national standard should compromise instead of starting over.
“There's definitely going to have to be some sort of [federal] preemption in order for a [data privacy] bill to be successful,” she said.
House Republicans’ agenda is also likely to include stepped-up oversight on about $64 billion included in 2021 infrastructure legislation to expand broadband access across the country, Turner Lee said.
Republican lawmakers are likely to probe how that money is being spent by the National Telecommunications and Information Administration, a Commerce Department agency, especially on how it defines and allocates between urban and rural areas for broadband expansion, Turner Lee said.
Rodgers also has called for greater attention to the Federal Communications Commission, the NTIA and other agencies’ decisions to allocate wireless spectrum that is key to 5G rollout as well as future mobile communications, Turner Lee said.
Another thorny issue for the next Congress will be addressing monopoly power in the tech industry. Doing so has bipartisan backing, but a divided Congress may still prevent lawmakers from making progress.
A bipartisan group of lawmakers — led by Sens. Amy Klobuchar, D-Minn., and Charles E. Grassley, R-Iowa, and Reps. David Cicilline, D-R.I., Jerrold Nadler, D-N.Y., and Ken Buck, R-Colo. — has proposed legislation that would prohibit giant tech companies including Apple, Amazon, Facebook and Google from giving preference to their own products and services over those of rivals.
The bills cleared the respective Judiciary committees in both chambers but haven’t received a vote of the full chamber. They are opposed by industry groups.
The recent downturn in the tech industry, which has brought thousands of layoffs at Amazon, Meta and other companies, is an indication “of how fragile these businesses are and how easy it is for a new competitor to arise,” Szabo said. “Antitrust is just a euphemism for more executive power without clear rules.”
The Federal Trade Commission has stepped up antitrust efforts and last week moved to block Microsoft’s $69 billion acquisition of video-game maker Activision Blizzard.
Szabo said Congress should rein in the FTC and make clear that the agency may not use factors other than consumer welfare to assess monopoly power.
Rep. Kevin McCarthy, R-Calif., the leading Republican candidate to be House Speaker in the next Congress, and Rep. Jim Jordan, R-Ohio, who’s likely to head the House Judiciary Committee, have opposed the antitrust measures.
Supreme Court cases
Two cases going before the Supreme Court, Gonzalez v. Google and Twitter v. Taamneh, could reshape content moderation policies of online platforms. Both cases revolve around protections for social media companies under Section 230 of a 1996 communications law. Lawmakers are likely to wait to see how the court decides before acting.
In the Google case, relatives of Nohemi Gonzalez, a woman killed in a 2015 attack by the Islamic State, argue that Google-owned YouTube "knowingly permitted" the terror group's propaganda and recruitment videos to spread through its recommendation system. The U.S. Court of Appeals for the 9th Circuit ruled that Google's practices were protected by Section 230 because the content was generated by users.
In the Twitter case, the same appeals court declined to consider Section 230 protections but held that Twitter, Google and Facebook could be liable for aiding and abetting acts of terrorism if the tech platforms formally banned terrorist content but didn’t take adequate steps to remove such content.
The high court also may take up two more cases involving Texas and Florida laws that would restrict content moderation policies of social media companies. A lower court rejected Florida’s law, and another court upheld Texas law.
Yet another content moderation issue became a hot-button topic for Republicans after Elon Musk in early December released internal files from Twitter that purported to show that Twitter attempted to suppress news about Hunter Biden in the run-up to the 2020 election.
“I’m not persuaded these are anything close to a bombshell,” Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University in New York City, told The Washington Post.
But the story has resonance for Republicans and will be a key issue for Congress “around conservative concerns about content moderation policies and how they impact Republicans,” Szabo said.
Despite progress on several tech policy issues that have brought Democrats and Republicans together on proposals, divisions remain.
“Here we are, sort of relitigating old processes,” Turner Lee said.
“It's very important in tech policy that we remain bipartisan in spirit, because the things that we are grappling with now, like broadband deployment and adoption, closing the digital divide, ensuring consumer protections against monopolistic practices of tech companies … how we solve them will determine their effect in decades to come,” Turner Lee said.