After what began as an encouraging year for technology policy, the 117th Congress is about to end its term with many key efforts.
Despite bipartisan support for antitrust reform aimed at digital tech giants, a digital privacy framework and new safety nets for kids on the Internet, lawmakers went home without passing landmark bills on those issues. And the Senate has yet to vote to confirm the final nominee to fill the Federal Communications Commission, leaving that agency unfinished for the entire Biden administration so far.
Congress passed the CHIPS and Science Act, which spurred domestic semiconductor manufacturing after shortages highlighted the risks of overseas production. He also included in the year-end spending package a bill that would raise funds for antitrust agencies by raising filing fees for major merger deals, as well as a measure banning TikTok on government devices in light of concerns about the national security due to its ownership by a Chinese company.
And even when it comes to many of the bills that remain in limbo, progress this year shows significant progress. Such is the case with privacy legislation, where a bill proposed this year received bipartisan support, passing a House committee by a near-unanimous vote. Still, he lacks the support of the Democratic chairwoman of the Senate Commerce Committee, Maria Cantwell of Washington, who is seen as critical to the legislation’s passage.
“Any privacy legislation should be bipartisan,” said Craig Albright, vice president of U.S. government relations for the BSA’s enterprise software group. “Senator Cantwell needs to be part of the process. There is no way around her, she will be one of the key leaders. But I think if the House can demonstrate continued progress, I think that will create more of an environment for the Senate to be able to operate.”
Albright added that the House committee leaders who supported the bill, Energy and Commerce Chairman Frank Pallone, D-N.J., and Rep. Cathy McMorris Rogers, R-Wash., who are expected to become chairmen next year under Republican control of the House, proved in a panel vote “that you can essentially come up with a bill that has broad bipartisan support.”
“I think it puts the next Congress in a stronger starting position than we’ve had before,” Albright said.
Lawmakers face a tougher landscape next year if they hope to pick up where they left off on tech reform. With Democratic control of the Senate and Republican control of the House in 2023, political observers stress that bipartisanship will be essential for the bills to become law.
While that could dampen hopes for most antitrust reforms, which, while bipartisan, are generally not supported by Republicans expected to lead the House and key committees, it could mean there’s still a chance for digital privacy legislation, where both parties emphasized the urgency despite years of lack of compromise on areas of disagreement.
Still, lawmakers who have led aggressive antitrust proposals and other tech reforms have signaled they will continue to fight for those measures next year.
“This is clearly the beginning of this battle, not the end,” Sen. Amy Klobuchar, D-Minn., whose bill barring online platforms from favoring their own services in their marketplaces failed to make it into the mandatory bills at the end of the year , said in a statement following the publication of the text of the spending package. “I will continue to work to protect consumers and strengthen competition.”
Sens. Richard Blumenthal, D-Conn., and Marcia Blackburn, R-Tenn., said in a statement that while their Children’s Online Safety Act, which places new guardrails on sites likely to be accessed by children, and The Open App Markets Act, imposing new regulations on app stores operated by An apple and Google, did not make it into the spending bill, they are “determined to reintroduce and pass this legislation in the next Congress.” The two blamed the bills’ failure to advance on intense lobbying efforts by the tech industry against them.
A Punchbowl News survey of congressional staff found that while a majority of Capitol Hill respondents expect a less productive session in terms of passing meaningful legislation, the technology agenda is high on the expected list of priorities. Punchbowl said 56 percent of respondents expect action on bills targeting Big Tech, a percentage that is second only to those who expect to see action targeting inflation.
Technology regulation is a top priority for Democrats, according to Punchbowl, with 59 percent of respondents choosing it as one of their top concerns. Among lobbyists and business executives polled by Punchbowl, 55 percent predicted lawmakers could crack down on a major tech company, with TikTok the most likely target, followed by Facebook parent Meta.
And while it’s unlikely to lead to new legislation, House Republicans have signaled they will use their majority to focus on technology issues that have been on the back burner while Democrats hold the gavel in both chambers. Rep. Jim Jordan, R-Ohio, who is expected to lead the House Judiciary Committee, has signaled he is likely to use that power to focus on tech companies’ ties to Democratic politicians and allegations of bias and censorship by social media platforms.
Earlier this month, he wrote to the chief executives of An apple, Amazon, Google, Meta and Microsoft, demanding information about what he called “the nature and extent of your companies’ collusion with the Biden administration.” He said the letters should serve as a formal request to preserve records related to the request.
Lawmakers are also likely to spend more time considering crypto regulations after the fall of the FTX exchange over alleged fraud by its founder Sam Bankman-Fried thrust the industry into the spotlight before Congress. Lawmakers have already considered some legislation aimed at the industry, and incoming House Financial Services Speaker Patrick McHenry, RN.C., has indicated that creating a clearer regulatory framework for crypto is a priority.
One of the key issues lawmakers have wrestled with is who should be the agency responsible for overseeing the industry. That question has so far remained unanswered, with many industry players advocating for the Commodity Futures Trading Commission, while some consumer advocates favor a larger and better-resourced Securities and Exchange Commission. A prominent bipartisan bill in the Senate would put the CFTC in charge.
Just like 2022, next year’s tech policy agenda will be subject to the whims of Congress and could be especially susceptible if the country sees some level of economic decline, as many experts expect.
“Everyone has their own desire to regulate technology. But I can’t help but wonder what that desire looks like depending on the economic outlook for the United States in the first quarter of 2023,” said James Cherniawski, senior policy analyst for technology and innovation at the Koch-backed advocacy group Americans for Prosperity, pointing out high interest rates and job cuts in the technology sector. “If we were to enter a recession at some point early next year, which is not out of the realm of possibility, it could lead to a realignment of priorities by Congress to more pressing matters.”
Czerniawski said the push for regulation in technology appears to be based on “an assumption that technology is this thing that’s just static and will be around for the test of time with these companies’ names attached to it. And if anything, I think the last year and the change has shown that that’s not necessarily true.”
“I think it’s pretty easy to beat Big Tech when they’re so successful and pulling in record profits,” said Tom Romanoff, director of the technology project at the Bipartisan Policy Center think tank, which received funding from Amazon and Meta, according to recent donor disclosures . “It becomes a different equation when constituents and districts are upset because they were fired from one of these very high-paying jobs. So, I think if there is an economic downturn, the focus will shift to the economy.”
Romanoff added that certain global dynamics could also shift the focus away from increased technology regulation, such as if tensions escalate between China and Taiwan, where much of the semiconductors are currently manufactured. He said such an event could lead to a shift from “a domestic focus on what these big companies mean to American democracy to something like a national defense strategy — what it means in wartime to regulate an industry that is very critical to any wartime industry’.
Still, the BSA’s Albright sees the focus on the tech sector in Congress remaining high because the concerns that existed in the past don’t go away.
“I think the economy is going to go up and down,” he said. “But the importance of technology policy issues will continue to be strong.”
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