The Biden Administration Should Avoid Past Mistakes on Cyber Policy

As thoughts turn to transition and, with any luck, healing divisions, the Biden-Harris administration should avoid any temptation to repeat mistakes made by the Obama administration with regard to cyber policy. I admire Barack Obama for many reasons, but the fact remains that his administration was too cozy with Silicon Valley, and this was understandable, if not entirely reasonable or prescient.

Let’s face it, in those days, Obama was hardly alone in staring Googley-eyed at the shiny objects bestowed upon us by the magic innovation factories in Northern California. Wall Street was ebullient. The press was eager to parrot the virtues of “free speech and innovation” in between scholarly sounding chats with billionaire whiz kids. And the public generally seemed to accept the narrative that the internet was super-charging democracy worldwide and should, therefore, be left to self-regulate—or at least to the illusion that it was self-regulating. So, of course Barack Obama, the first post-Boomer president, the guy who famously wanted to keep his Blackberry when he entered the White House, was a tech-geek.

But President Biden will inherit a very different America—one chagrined by having its dirtiest laundry displayed across every screen—a nation that has to confront deep divisions and the painful acknowledgement that we are not even on the same page with regard to the most classical principles in American civics. Or perhaps more frustratingly, we may be more on the same page than we think, but we will never know it because forces beyond our control are deepening our apparent divisions of which Trump is both a symptom and a cause. Without a doubt, one of those forces is the internet.

The Biden administration has announced that it will “Establish a new Task Force on Online Harassment and Abuse to focus on the connection between mass shootings, online harassment, extremism, and violence against women.”

A good start. The next administration must take a more critical, more skeptical look at how toxic some of the flaws in our cyber policy truly are. As my friend Neil Turkewitz writes, “For far too long, we have been operating under a myth of neutrality, and excused malfeasance as a cost of liberty. Not only is the myth wrong, but the costs have principally fallen on the most vulnerable members of the community.”

But although the Financial Times predicts that Silicon Valley cannot expect the kind of relationship it had with the Obama administration, it also notes a number of potentially uncomfortable allies, including that former Google chief executive Eric Schmidt is “being talked about to lead a new technology industry task force.” I hope the Biden-Harris administration will take note that this chickens-minding-the-foxes approach to cyber policy played a significant role in fostering the very divisions Mr. Biden says he is determined to heal.

Real Policy Reform vs. Rhetoric

There has been a lot of noise in congressional committees about Section 230 vis-à-vis claims of censorship and political bias—allegations that are not only unfounded but are acts of legislative malfeasance toward those American citizens who are actually harmed by over broad interpretations of Section 230. Just like a deadly virus, online harassment can reach anyone anywhere; it knows no party loyalty.

Most acutely, women and girls have been victimized to the point of suicide by various forms of online harassment. Non-consensual pornography, now enhanced by the technology called “deepfakes,” enables individuals with limited technical skills and no morals to harass their victims across any distance. Job loss, destruction of relationships, PTSD, and physical assaults have all resulted from online harassment. It is long past time for the White House and Congress to jointly confront the fact that laissez-faire management by online providers has failed and that there is ample justification for dramatically rethinking the “neutral platform” narrative that has driven public policy to date. As scholar Mary Anne Franks, in her book Cult of the Constitution writes:

Extending liability beyond direct actors can be justified on both fairness and public policy grounds. First, it is only fair that people who benefit from the illicit actions of others should be held partly accountable for the harm they cause. Second, third-party liability creates incentives for powerful intermediaries to engage in proactive steps to discourage unlawful conduct before it happens, and to respond quickly and effectively when it does.

In case anyone is looking for a model of what bipartisan cooperation on cyber policy looks like, the IP Subcommittee of the Senate Judiciary Committee in its hearings on the Digital Millennium Copyright Act would be instructive. Like Section 230, DMCA Section 512 provides platforms with a specific type of liability shield, but because the subject of copyright enforcement is not so easily politicized along party lines, Chairman Tillis and Ranking Member Coons have been conducting the same conversation. Consequently, debate about the DMCA is driven by substantive policy discussion, as it should be, not by members of either party generating sound bites that have nothing to do with serving any citizen’s real interests.

While it may be naïve even to hope for bipartisanship in the near future, there can be no question that the ball is in the Republican leadership’s court. Either members of that party, acting in good faith, will lay down the weapons of misinformation and extraordinary divisiveness, or they will double-down on what we now call Trumpism, and America will remain in this murky, tense détente indefinitely. But as healing often begins with small steps, it seems reasonable to ask the government of 2021 to coalesce around the agenda implied by President-Elect Biden’s Online Task Force. The goal to limit the role of cyberspace in fostering harassment, incitement of violence, and mass shootings should not be the least bit controversial.

© 2020, David Newhoff. All rights reserved.

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