On Cyber Policy, Biden Should Make a Fresh Start

As the Biden administration seeks to restore normalcy in American governance—from constitutional legality to ordinary decency to an actual response to the COVID crisis—it is little surprise to see officials from the Obama administration return to Washington. But as we emerge from the political and emotional rubble, the new administration should recognize and reject one of the major errors made by its Democratic predecessor—a seemingly technophilic friendship with Big Tech that placed Google in particular at the heart of the executive branch.

President Biden stated in his inaugural address that we must reject the assault on truth that has galvanized cult-like beliefs among too much of the electorate, and which exploded at the Capitol on January 6th. Amen. But in order to effectively address the unprecedented role the internet has played in the transmission of conspiracy theories and other toxic content, the Biden administration must understand the relationship between the dire outcomes we have witnessed and Big Tech’s influence on public policy—namely antitrust law, privacy law, and copyright enforcement.

By carving out its own exceptions within these and other legal frameworks, the major internet companies have for too long shirked their responsibilities as corporate citizens, and the new administration should make every effort to begin with a blank slate vis-à-vis cyber policy and not reopen the revolving door that once facilitated contact between Google and the White House.

In 2016, Vox reported that the Obama White House had more interaction with Google lobbyists than those representing any other industry. In 2017, the Campaign for Accountability published a report identifying extensive Google funding of academic papers “tied to specific issues that Google sought to influence,” of which two-thirds reportedly did not disclose Google’s backing. We cannot return to this paradigm in which Big Tech writes its own rules of the game. We need to hit the reset button on the whole conversation.

Silicon Valley’s historic positions on antitrust, privacy, patent and copyright enforcement, and more recently on disinformation and anti-harassment initiatives have something in common. To many of us, they look like familiar guardrails of societal norms, but the tech industry has often characterized these as obstacles to the frictionless flow of data—i.e. their bottom line. Let’s be clear. By the time Facebook, Twitter, Google et al finally began to remove radicalizing misinformation and propaganda from their platforms, they
had already earned billions monetizing that same content right up to the point when it became untenable from a PR perspective.

The New Administration Should Listen to American Artists

Songwriters, for instance, had good reason to raise concern last week about reports that the DOJ might rehire Renata Hesse as Assistant Attorney General for Antitrust. In 2016, Hesse determined that rather than end the age-of-radio licensing regime that eviscerates songwriter royalties in the streaming market, she proposed aggravating matters by ending “fractional licensing,” for works with multiple authors—in essence using her antitrust authority against the Davids instead of the Goliaths in the room.

Similarly, as of last night, it appears the administration has tapped Gene Kimmelman for the antitrust role, and again, this rings alarm bells. Kimmelman was formerly CEO of PublicKnowledge, a Google-funded organization that rarely advocates a position incompatible with Big Tech’s interests. And as author and monopolist critic Matthew Stoller noted in a tweet: “Kimmelman is generally a consumer welfare advocate, and he supported the DOJ under Obama suing book publishers on behalf of Amazon because supporting Amazon’s monopoly would lower consumer prices. It’s possible he has rethought his approach.”

Tech millionaires are not the people who need support from the Biden administration. The creators do—the people whose works we recognize mean more than ever in a time of crisis and isolation. While the EU has much more forcefully addressed Google and others’ non-competitive practices, figures like Hesse and Kimmelman have both advocated ways to exacerbate creators’ already weakened bargaining position in the 21st century market. That is the opposite direction we need to go—especially when a global health crisis has revealed 1) how profoundly dependent we are upon the arts; and 2) how economically precarious artists are in the digital age.

Big Tech did not cause the pandemic or the consequent shutdown of many sources of artists’ revenues—from live theater to film shoots to classroom teaching. And admittedly, those companies get some of the credit for helping to build the infrastructure that gives us access to music, shows, movies, etc. when we are all stuck at home. But on a much more profound level, Big Tech practices and policy agendas obliterated the source of revenue that might otherwise help sustain many creators in a time of crisis:  sales of works at fair-market prices, backed by strong copyright enforcement and anti-piracy initiatives. Efforts in this regard gained little purchase in the Obama years, especially once Google flooded the zone with lobbyists beginning in early 2012.

As many have discussed in the past, policymakers can learn a great deal from the creative community. Musical artists were the proverbial canaries in the coal mine we called the digital revolution, and from the moment citizens were sold the premise that copyrights were outdated, it was a short logical hop to the argument that permission itself was outdated. And so, the floodgates opened until the romanticism of the internet as wild west eventually looked too much like the real wild west—feral, lawless, and violent. Of the many things that need restoring in Washington, showing the major internet companies more deference than scrutiny should not be on that list.

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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