The Impact of the U.S. Midterm Elections on Tech Policy

Audio of this conversation is available via your favorite podcast service.

Voting in the U.S. midterm elections closed on Tuesday, and as of Sunday morning, November 13, Democrats secured another majority in the Senate. But ballots are still being counted in key races that will determine which party controls the House.

It is clear, however, that the margins determining leadership in both chambers will be extremely small. In order to explore how the elections may impact the legislative debate over tech policy issues, I spoke with three experts from civil society groups that regularly engage with lawmakers to find what scenarios and considerations are front of mind, even as we wait for the final tally:

• Emma Llansó, Director of the Free Expression Project, Center for Democracy and Technology (CDT)
• Yosef Getachew, Director of the Media and Democracy Program, Common Cause
• Matt Wood, Vice President of Policy and General Counsel, Free Press

These three groups often work in coalition. For instance, they are each signatories to a letter signed by 48 civil rights, privacy, and consumer organizations urging House Speaker Nancy Pelosi (D-CA) to bring the American Data Privacy and Protection Act (ADPPA) to the House floor for a vote; a letter signed by nearly 250 groups urging Senate leadership to bring Gigi’s confirmation to the senate floor for a vote; and a letter to Senate Judiciary Committee leaders opposing the Journalism Competition and Preservation Act (JCPA). But, they each have their own specific concerns at the intersection of tech and democracy.

What follows is a lightly edited transcript of the discussion.

Justin Hendrix:

I am so pleased that the three of you can join me today to talk a little bit about the implications of the US midterm elections on tech policy. I guess just before we get started, a word about what each of you do. Give me a sentence or two about how you interact with the Hill in your day to day. Perhaps Matt, I'll ask you first.

Matt Wood:

Well, you have a great group here, if I may say so. We all tend to interact with each other and with the Hill in some similar ways with a lot of overlap on some issues and less on some other issues that our different groups handle. So I would say Free Press is focused on a broad set of technology and media policy issues. We still do work on traditional reporting as they might suggest, and on first amendment reporters committee press freedom work, also broadcasting work, which is still important, especially around times of elections. People seem to remember that when a lot of the time people want to think that broadcasters are no longer all that important. But then of course, we're probably best known for net neutrality and our FCC work that's more on the ISP and telecom side of the world.

Nowadays, this is where we do more crossover with what Emma does as well. We do all the platform work and so that touches copyright, but now there's a lot of talk about antitrust, which is one of the hottest things on the Hill, privacy content operation. So maybe not everything in the field, but a pretty broad swath of things. We're pretty active on Capitol Hill, both our lobbyists here in DC, but also the people we have on our different member lists that we try to activate to and get them talking to their representatives too.

Justin Hendrix:

Emma, what does your shop look like?

Emma Llansó:

Sure. So I head up all of CDT's work on law and policy related to freedom of expression online. So what shapes people's ability to access information and find places for their speech on the internet and connected technologies. As far as Congress goes, that means I spend a lot of time talking to people about Section 230, the intermediary liability law in the United States, as well as weighing in on a variety of different laws or legislative proposals that have an impact on freedom of expression and First Amendment rights. That can be everything from online child safety to competition bills. I'm fortunate to work with a lot of really great people focused on different substantive issue areas at CDT. So I'll get pulled in on surveillance or privacy, net neutrality competition, all that good stuff. In addition to focusing on legislation on the Hill, we also do a lot of work in the courts as amici and a lot of independent research as well.

Justin Hendrix:

And Yosef.

Yosef Getachew:

So Common Cause is a democracy reform organization. We work to ensure that our democracy works for everyone. As the Media and Democracy program director, we focus on the intersection of technology and democracy. It's really about making sure that technology facilitates and supports participation in our democracy in a meaningful way. So what's funny is, I get to work with Emma and Matt and many others on many type policy issues. We just approach things from a slightly different lens. So when it comes to broadband access and affordability, we think broadband is crucial to making sure that everyone can fully participate in 21st century democracy. With media, it's all about making sure that there are independent and diverse owners of traditional media and that new media platforms aren't engaging in harmful practices that undermine our democracy. So what does that look like when it comes to congressional activity?

It's looking at legislation that promotes broadband access, that ensures that there's net neutrality out there for the FCC'S authority for net neutrality. It's making sure that we have sustainable local journalism. Local journalism is critical to a functioning democracy, but as a lot of folks may know, our local journalism ecosystem is declining, and there's a lot Congress can do to support it in a meaningful way. So it's really about how do we interact with the consumer groups, the civil rights groups, and as a democracy group, making sure that our voice is heard in the tech policy debates.

Justin Hendrix:

So I'm speaking to you on Friday afternoon, 4:00 PM Eastern time, and we still don't know quite yet who will have control of the Senate, which party will have control of the Senate, which party will have control of the House. That of course makes this discussion contingent of course on those outcomes, and perhaps we'll know more by the time I'm set to publish this on Sunday. But I want to ask you all a little bit about how the tech policy debate in legislative priorities might change depending on the outcome. What are you expecting and what types of scenarios are you preparing for? Maybe Emma will start with you.

Emma Llansó:

So I think one of the main scenarios we were planning for has clearly not materialized, and that's the idea of a red wave that sweeps both the House and Senate and gives really large majorities to the GOP. That potentially posed or would've created a scenario where we'd see a lot of different kinds of activity around tech policy, particularly on the intermediary liability issues that I focus on. There's been a lot of call from the right to revoke or repeal section 230 to really try to constrain online services ability to do content moderation, all coming from this not empirically-founded concern about anti-conservative bias and content moderation.

So that was the scenario that I was really gearing up for as basically a worst case scenario because I figured we would see a return of a lot of different kinds of bills that we'd seen last Congress and proposed throughout this Congress that would speak to limit company's ability to remove disinformation or hate speech or different kinds of harassment that don't meet that legal threshold of actually being illegal content. That didn't happen.

So, now I think we're in a much more interesting, in a lot of ways scenarios because whatever ends up happening with either chamber, no one's going to have a terribly large margin. There's going to be really close control, whether it's Dems in the Senate, Republicans in the House, or some other version of an outcome. I think you're going to probably see, my guess would be a similar continuation of the focus on bipartisanship that we saw during this Congress, that you'll see maybe a return of some of the bills that have gotten pretty far along the process in this Congress and a sense that no party can really just bulldoze a set of policies through their chambers, because we've seen how hard it is to keep a really narrow majority together.

Yosef Getachew:

So I want to pick up on where Emma left off. I think whatever the scenario that comes out of midterm elections, we know that the margins are going to be very slim in terms of who controls the majority in either the House or the Senate. So when you look back at this current Congress, what have we done in terms of passing tech policy legislation? Well, we got the Infrastructure Act which allocated billions of dollars for broadband. So that's one piece of legislation. I think there was also the CHIPS Act, which allocated a lot of funding for semiconductor research. So there wasn't a whole lot of legislation around tech policy outside of those two bills. So what does that tell you about the next Congress? If the margins are slim one way or the other, we may not see a whole lot of movement on tech legislation unless there is a bipartisan framework.

So there's a couple of things that could be bipartisan. One, we know that comprehensive privacy legislation is currently moving in this Congress, a bill passed out of the Energy and Commerce Committee with overwhelming bipartisan support. That's certainly a good place to start for the next Congress and the bill doesn't pass this year. There are a couple other things to consider too. No matter the control of Congress, we know there's going to be some change in leadership. Senator Wicker (R-MS) is leaving his position as ranking member of the Senate Commerce Committee. So there'll be a new ranking member or a new chair of that committee. There could be a new leader of the HOPS. There could be new house committee chairs. All that's going to change the focus and the dynamic of what various committees and members of Congress look at. So it's going to be an interesting time one way or the other.

Justin Hendrix:

Matt, how about from your perspective?

Matt Wood:

Of course, a lot of agreement with all the great analysis there. I guess I would take it a little further into just some of those particular topics that were already touched upon and thinking about what Emma mentioned. It's a funny landscape. The odds in Congress are always that the thing won't pass, whatever the thing is, especially when you need 60 votes in the Senate and nobody's had that because we don't have the red wave and the Democrats had such a low majority in this past Congress. What I think that means going forward is that funnily enough, content moderation and privacy, and it's usually described as antitrust, but there's a lot of work that I might put all of those three things into a platform accountability space like people are concerned about Facebook or Google or Twitter or all the above. Those things have all moved pretty far ahead in this Congress but not gotten to finish line.

That's because they actually do have bipartisan proponents, but they have bipartisan opposition as well. So I think exactly as that was said, we might see those things continue to move along, but it's not been predictable or easy or either party or frankly, either position has enough votes to just steamroll and do whatever they like. They've had to really work hard and build and that bipartisan privacy bill also have mentioned is if you ask me something of a miracle to get such an overwhelming vote in the current Congress in this a political environment, and yet it hasn't gotten all the way there. It's been stalled out. I would say on the more traditional media issues and here I would put broadcasting and the telecom issues I was talking about net neutrality and a broadband affordability and deployment, universal service and digital divide.

I'm so glad Yosef mentioned the infrastructure bill that was a crowning achievement and really important. Yet, here's where I'm going to try to draw the line between that and the platform side, there really are pretty clear partisan divides like Democrats and Republicans tend to line up on different sides of the street when it comes to media concentration and whether we ought to be doing more or less to stop traditional media companies like broadcasters and newspapers get together on the broadband affordability and whether broadband's a utility, right? It's funny that utility has become a dirty word for some people in Washington DC, and yet I think most people on the street today would tell you, yeah, broadband is essential. It's a utility. Please help me to get it on better terms. That's where you really do see the partisan divides where there's barely anybody willing to cross that line.

Yet for exactly the same reason, I don't think much is going to change. Neither party, no matter who controls which chamber at the end of this has enough votes to wipe the slate clean and start over and really start pushing through a lot of laws that would change that calculus and change the way people at the Federal Communications Commission do business. Last thing, footnote, if they can do any business, because that's one of the big things that is still pending too, and that's a big question here in the lamb duck is will the FCC ever get a fifth and deciding vote or will that remain stalled? I wish I was smart enough to say here's how the election impacts that likelihood. But I think that is also still very much up in the air as Gigi who was nominated more than a year ago now for that fifth and final seat at the Federal Communications Commission still hasn't gotten a vote on the Senate floor.

Yosef Getachew:

If I could add one quick thing in terms of some reactions to what's going on and the midterm results, we've seen that in the Republican camp election, denial was a huge issue. It has been a huge issue. We saw some election deniers win positions, but some who didn't actually admitted defeat. So depending on the dynamic of the Republican party, it could be really interesting to see, are the election deniers going to control the party or will they take more of a traditional approach to party politics and legislation they care about? How that translates to tech policy legislation could be interesting. Some of the driving force around platform accountability has been this false narrative that platforms are biased against conservative viewpoints. We know from the research this is not true. What could be interesting is if Republicans, the election deniers aren't in control of the Republican party, there could be a more return to normalcy in terms of let's look at the business models of platforms. Let's look at ways that we could regulate and legislate certain business harms that lead to dangerous outcomes that we all think should be worth legislating.

Justin Hendrix:

Let me press just on this question here just for a moment, because we have heard some inklings of a backlash against disinformation mitigation efforts, backlash against even disinformation research and universities. Some of that has come out of some of these committee hearings, people like Sen. Tom Cotton (R-AR), Sen. Ted Cruz, questioning some of these practices, that kind of thing. Can we imagine in a Republican if Republicans have the gavel that we'll see more investigations into that type of thing?

Yosef Getachew:

Yeah, it's possible. I think one, it depends on the direction the party goes next Congress, who's going to be house speaker, if Republicans take control of the House, what the priorities are going to be for the House. In terms of the Senate, whether the proprietors are going to be there. I think when it comes to disinformation, it's unfortunate that it's become a partisan issue when we're looking purely at elections. Elections are a nonpartisan issue. There are, there's nonpartisan information about how to vote and that's really what we focus on is making sure that voters have access to that and legislating in a way to make sure that voters have access to accurate information ahead of vote. That's really focused around business models platforms. So while we could see some movement from the more extremist aside of the Republican party around the backlash of disinformation, I'm hopeful that there's also a good discussion around not just the harms that disinformation causes, but what can we do from a business model approach to mitigate those harms?

Emma Llansó:

Well, and I'll chime in that one area where we've seen some of this pushback on disinformation research has actually come up in the context of bills focused on trying to enable independent researchers to have access to data held by social media companies or other tech companies so that they can do these kinds of investigations. That's been an interesting issue because it's, we've actually seen on both sides of the Atlantic, this was coming up in the European Union around the Digital Services Act as well, that some policy makers often on the right but not exclusively really have a visceral negative reaction to the idea of only letting researchers who are affiliated with accredited universities have access to this kind of data. There's an important point to that. There's a lot of really interesting and important research and journalism and other kinds of investigations that happen by people who aren't in necessarily affiliated with a well-regarded or a credentialed institution, but who are working freelance, who are working for themselves, who are part of a civil society organization, or some other context.

That what I think has been really positive is we've seen sponsors of those bills and those proposals really take that kind of feedback on board and think about what are the ways that you can look at an issue like researcher access to try to do some of the really challenging balancing between wanting to have as many researchers as possible have access to information, but also recognizing the serious privacy risks that can happen if you just made everybody's data open to everyone who happened to call themselves a researcher. So I think there have been some more sophisticated discussions going on about how could you look at the issue with maybe the most highly vetted researchers having access to the most sensitive data only in very controlled circumstances all the way through to really looking at what's the kind of data that could just be made that's already public already in some ways available to everybody, but it could be made more useful, it could be made more accessible either through APIs or funding for the actual computational resources necessary and analytical resources necessary to make use of it.

There's a lot of things that could happen on the already public data side of things that would actually be in this much more kind of egalitarian and democratic approach of open access to everyone. So I do even in areas like that where we've, we've definitely got some strong pushback on ideas of, oh, these research access bills are just about elitist diving league institutions. There's really, there are ways forward. I think what gives me some hope on those issues is that already we've seen members really interested in engaging on those issues and finding a way forward and not letting the immediate pushback be enough to stop an idea in its tracks.

Matt Wood:

Yeah, and I'll just add, so one quick point on the congressional side, and then I'll plunge, but hopefully not drown in information, substantive questions. I mean Justin's question is so important, right? Because you say investigations-- and even though a lot of us would like to think that civics is easy and Congress passes bills, that doesn't happen very often. So much of what they do is they influence how the administration works based on oversight hearings either directly of the administration are just on general topics, whether or not they call up and especially as Republicans controlling one or both chambers of Congress calling up Democratic officials to testify in front of them. That can exert enormous pressure. So if we do have a chairman Ted Cruz of the Senate Commerce Committee rather than a chairwoman Maria Cantwell (D-WA), that's a very different atmosphere. He said to state the very obvious.

So that could very much chill what the government wants to do to try to look into this information. But I'm using the word chill there under advisement because that's the concern that people have with disinformation quite rightly. Who decides what is disinformation? That's why there've been so many Republican outcry about this. So when I talk about plunging into disinformation and what to do about it, everything you have said is so smart. That's where we've pitched our extensive disinformation work too at Free Press, trying to look at the corporate accountability side of it. Actually, not just empowering, but encouraging companies to take down disinformation because it's not just good for their business model, it's good for the country and the world I daresay. But when you try to get into the governments, I think that's where I'm more aligned with Emma and with a lot of people in this space of like, yeah, if you wanted to say have the Biden administration do more to take down disinformation, would you trust the Trump administration or a future Republican administration with the same powers, right?

That's the classic, not just first Amendment conundrum, but first Amendment principle that makes us so cautious in this space and yet we're seeing people awash in disinformation and in fact even elected officials putting it out there. So while I'm fully on board with the question or with the position that we have to be extremely careful what we as a country and we as a government try to do about it, doing nothing is not much of an option. So yeah, if we're going to limit the study of it and be truly shrugging our shoulders and saying nothing we can do about it's just going to happen and liars are going to lie. Well, that's a pretty sad place to be, especially when we see elections and perhaps our very democratic institutions in so much jeopardy from the attacks they've been under for the last several years at least.

Justin Hendrix:

Well, that will be one to watch very closely. We'll see which way it goes. I do wanted to come back just for a moment to the American Data Privacy and Protection Act, the ADPPA. Matt, you mentioned it was a slight miracle that it came out of committee with so much support. What are its prospects based on what we know now about the makeup of Congress? Is there a chance that with the election out of the way, no matter which way Congress goes, that perhaps it would advance?

Matt Wood:

I think there's a chance. It's just for one thing, like I said, the odds are always against any bill moving ahead because it's so hard to get the votes lined up and just get the floor time. The logistics are always hard, and for two, it's not really been a partisan divide, but it's also not been the same issues in every quarter of Congress. I mean we often talk about, or at least folks up on the hill talk about the four corners, right? There's like the Republican and Democratic leadership on both sides of the hill in both the House and in the Senate. So on the House side it's even more complicated. You had 53 to two vote all the Democrats and all the Republicans except for two Democrats I believe in the final tally voting to advance the bail out of committee in the house.

Yet there's been this strong opposition from California members sometimes vocally, sometimes a little more behind the scenes people saying, well, California has a strong privacy law. So we California typically Democrats are not actually on board even though many of them are on that committee and voted to move the bill ahead. They had some reservations. So you have federal, state, and regional politics in play too. Then on the other side of the hill crossing over to the Senate, you have on this bill three of those four corners that have been supportive, both of the committee chair and ranking member, the Democrat and the Republican in the house. Funnily enough, the Republican minority in this current Congress on board on the Senate side, but not the Democratic chairwoman of the Senate Commerce Committee, Maria Cantwell.

So that's why my answer is so long. Yes, I think it could move ahead, but this has not been something, as I indicated earlier, where it's been Democrats say yes, the Republicans say no, it's a little more complicated than that. While that's refreshing, it's not have everything just be strictly partisan, it doesn't make the prospects or something moving any simpler or easier because it's had different kinds of hurdles to get over and needles to thread.

Yosef Getachew:

I want to just briefly jump in to add on to what Matt said. He's absolutely right about the political dynamics. The fact that he said it's a miracle that the bill passed out of committee is funny, but sadly true when you think about when is the last time Congress has passed a privacy bill. It's been decades. I was trying to think back, when is the last time that a privacy bill passed out of a committee? I couldn't tell you when that was. It may have been when the last privacy bill was passed out of Congress. So the fact that this bill did pass out of committee with overwhelming bipartisan support should be a really good indicator of where Congress should continue to build off of if the bill does not pass this year. Ideally it does because I think there is a real interest from both sides to do something on this bill and to get a comprehensive framework on privacy passed.

I think the speaker is in an interesting position. She's trying to balance the needs and interests of California as well as the rest of the Democratic caucus. We know that the rest of the Democratic caucus, at least from the committee vote, seems to really like this bill. So we're hopeful that there'll be a compromise struck that will allow this bill to move forward, at least in the House side. If it does get to the floor for a House vote, it's going to show even more of an interest by Congress to do something if the bill can't move past that. So there are certainly steps in the works, and we're hopeful that it will continue to move.

Emma Llansó:

I think CDT is in the same boat as Common Cause and Free Press of thinking there's no good reason it shouldn't go forward in lame duck, but plenty of political reasons why it might not. But I mean the pathway is clear enough for it to this bill to keep moving. I really hope that members also think about whatever their priorities are, whatever their strategy is going to be for the next Congress, whoever ends up in control, so many of the conversations we've been having this year around competition, around how to regulate app stores, what to do about kids' safety online, they're all a lot harder because we don't have baseline privacy legislation. We don't have that solid framework that lays out this is what is and isn't acceptable to do with data.

This is the base, the foundation of how online services can use and can't use our data that you can build more complicated policies or more specific policies on top of. So we see in a lot of the other bills, including everything from research access to data to competition to kids' safety, also a lot of trying to do a little bit of data protection regulation in the background to say, okay, well for the purposes of this bill you've got to have this sort of framework set and it gets a lot more difficult to move forward. So if anybody has big ambitions about moving bigger tech bills in the next Congress, getting baseline privacy legislation in place now would probably make that easier.

Matt Wood:

I want to add one more thing too on top of what Yosef and Emma are both saying, which is not only is this a good idea and a good bill because it's important privacy legislation, but it's not just any old privacy bill. One of the big landmarks as far as we're concerned is the civil rights component here, and not just talking about privacy as the right to be left alone, but as preventing as I was describing too, the kinds of data abuses people are being harmed by the fact that companies can take in so much information and chew it up and do a lot of things with it, including things that certainly seem to fail current civil rights law, but that it's been harder to apply to platforms and to other spaces online.

So that's why we and so many other groups, including Common Cause and many traditional civil rights groups too, have spent so much time trying to push this bill ahead despite the, what was I saying earlier, unusual headwinds. It's not that Democrats are in favor and Republicans are against, It's been a little more complicated than that. But yeah, as Emma said, there's no good reason for it not to move. It's just that there's a lot of different variables in play right.

Yosef Getachew:

Yeah, we can talk about this bill all day and you'll have to stop us at some point. But just to sum it up again, going back to the fact this bill passed out of committee with bipartisan support is really important when you think about what's in the bill, Matt mentioned the civil rights protections. These are really landmark protections that make sure that companies can't use data in discriminatory ways that harm people of color more than any other communities for a lot of the harms that we see. It also has data minimization protections, a lot of the bills we saw before this one really just further the notice and choice model, which is what we have right now, and that doesn't really work. So the fact that we were able to get both sides of the aisles to agree on moving the ball forward in a way that will provide important protections and change the way data is collected and process really speaks for where we are.

Justin Hendrix:

I want to give each of you a chance to mention any other bill that is currently on the floor or in consideration that you are following, to share what you think might be different in this next Congress about its prospects, how the different dynamics that are at play may impact whether it could move ahead.

Yosef Getachew:

So I mentioned earlier on that we really care about supporting local journalism and local news outlets. Congress has considered a number of bills this session around how do we support local news. The one that is unfortunately moving is the Journalism Competition and Preservation Act. Essentially what this bill does is give an antitrust exemption for news publishers to collectively bargain against platforms for greater shares of ad revenue. We are not a fan of this bill for a number of reasons.

First and foremost, we think this bill really just entrenches the existing model of media conglomerates owning much of our media and no really supporting smaller independent outlets. At the same time, we don't think this bill is going to really solve the problem. You're putting in pockets in the hands of big conglomerates at the end of the day and not really putting any safeguards to make sure that more reporters are hired, there's more investigative news, and information that meets the needs and interest of communities. So you're not really solving the problem and you're not moving the ball forward in a way where we're changing the way local news is supported. That's something that we're really concerned about.

Justin Hendrix:

And do you think anything about this election will change its prospects?

Yosef Getachew:

Well, we're hopeful that we can restart the conversation next year. Ideally this bill won't reach the floor for a vote. I think given that there was some bipartisan support for it. There's work to do in terms of changing the dynamics around what we consider to be strong local news support legislation, and that's work that we're planning on doing in the new year.

Justin Hendrix:

Emma, is there a particular bill you're watching?

Emma Llansó:

So a bill I'm watching, although I don't have a great sense of exactly how the changes from the midterms election will affect it, but Section 702 of FISA is up for reauthorization. So that is going to necessarily be part of ... so for an intelligent surveillance act that is necessarily going to be part of the conversation around tech and privacy and government surveillance in the next Congress. That could be an opportunity not just to reform Section 702, but maybe open up conversations for looking at intelligence surveillance more broadly. So I think the need there will definitely be a need for bipartisan negotiation and agreement and potentially some more room than there has been in the past, given some of the increased skepticism on the right of the FBI, of government surveillance in general, and specific use of these different powers. So I think that'll definitely be something to watch and could be an interesting place to see where either new members coming on board or changes in leadership and committee assignments might really help shape that negotiation.

Justin Hendrix:

Matt, is there one that's on your radar?

Matt Wood:

Well, I mean you were kind up just what we were chatting beforehand too, to mention the Fourth Amendment is not for sale act. Maybe we can swing back to that as well. It loosely fits into the category analyst talking about when it comes to government surveillance, but it also has some corporate surveillance or government almost like public private partnerships for surveillance if you will if that's not an abomination to think about. But that's really what happens. I'll say a worry about that. But then I'd love also to keep talking about the kinds of antitrust bills that Yosef was talking about too, because I think that is just so important and so much of what we've seen move in this Congress.

But yeah, so the Fourth Amendment is not for sale act. It's basically a notion coming from Senator Wyden (D-OR) and others as the somewhat colorful title would suggest that if the government would need a warrant to get this information on its own accord, then it shouldn't be able to skip that warrant process and say, "Oh, that's messy. We'd rather not do that. Or maybe we couldn't even get a warrant. We'll just buy that same data from data brokers or other kinds of online businesses."

Again, I think we're all accurately portraying just how complicated the situation is. I don't know that who holds control of Congress in either chamber really changes the fate and fortune of this bill, either in the lame duck or new Congress because again it has been somewhat of a fractured landscape. It has good democratic support and Republican co-sponsorship too. There's certainly been some momentum for it in both judiciary committees, both the Senate and the House side. But it seems like Senate judiciary leadership under Senator Durbin (D-IL) has been unwilling to put that bill up for a hearing of its own and move it on its own track. I mean there's a lot of people who look around the privacy landscape, understandably enough, as I think most advocates do, at least our three groups and many others like us, and say, "Well, it really is a whole continuum."

We need to worry about government surveillance and intrusion. But we're also concerned about corporate abuse of people's data. So what I've heard sometimes is I think it's fair to say excuses, "Well, we can't move this bill about government surveillance unless we also have comprehensive privacy legislation," leading people like me to say we do meet the ADPPA, right? Let's not try to reinvent the wheel again to make it as redundant as possible because that's what we often do. But I think that's given the Fourth Amendment is not for sale act. Some of the hurdles and hiccups we've seen where people are like they ought to embrace it on the judiciary committee, our job is to regulate surveillance by the government, not so much to get over into the corporate side.

Yet there have been some rumblings about, well we can't this until we have all of the answers. Of course, just like with the Section 702, don't underestimate the influence that the intelligence community and law enforcement officials have when it comes to either openly or in back rooms, going to committee members and lawmakers across the hill and in both parties and saying, "Oh, this is bad for security. It's bad for America. You can't move this ahead despite what those privacy advocates are telling you."

Justin Hendrix:

Well, let's finish then on antitrust. We've got a couple of bills that of course are waiting for their day in the sunshine and the Senate. What do we think is going to happen there?

Matt Wood:

I mean, I can go and continue, and I was trying to come back to what Yosef was saying because there's so much to say about the JCPA, but you're right, it's not the only antitrust bill and yet so many of the bills that have been packaged as anti-trust reform have so many other things they're trying to accomplish and do as well. That's really where I think it's all three of our groups see a lot of question marks and even dangers in the approaches that they've been taken. Now that hasn't been the song sung by many groups that also rightly call themselves progressives. I mean there are many groups that are supporting both of those bills. When I say both, I mean not only the Journalism Competition and Preservation Act, the JCPA that Yosef was talking about that is really about trying to let traditional media companies bargain with and have more leverage against Google and Facebook.

But also another bill that's Senator Klobuchar (D-MN), Democratic Chair of the Judiciary and Antitrust Subcommittee in the Senate, has been doing most of the work on lately it's called the American Innovation and Competition Online Act, or ACOA another pretty bad acronym if you asked me, but I'm not the one who gave it to it. So that's what some people call it. Or S2992 is a little more the shorthand way to describe it, but not very meaningful. But in any case, that's basically a non-discrimination bill. When I talk about these bills being antitrust plus, in our case we might say, plus dangerous other ideas, it basically says that big platforms, it really is about size, shouldn't be able to favor their own products over other people's products. You think about Amazon as not only a seller of its own goods, but also as a platform for third party sellers.

Now there's a lot to like in that, and it certainly makes a lot of sense from an antitrust standpoint, but the danger that we see in that bill and in the journalism bill is not just the somewhat weird mechanics of the antitrust and competition policy they're trying to make, but also this notion that non-discrimination law should apply to platforms more generally too. Meaning that they should be neutral, that they shouldn't discriminate. I'm using air quotes here, which is a silly thing to do when we're not on video, but they shouldn't discriminate against anything including political viewpoint. That's really maybe where I would see the biggest difference to kind of circle back around to the change in Congress is, as Emma laid out earlier, if Republicans control, they've been the ones who've been the most concerned about political bias, alleged, supposed not proven, but something that they claim is happening all the time on these big tech platforms.

They've taken a really staunch anti Silicon Valley stance. So while all these antitrust bills have had, again, as I was saying earlier, bipartisan support and opposition, it's really interesting to watch the bipartisan support is almost like people agreeing with each other, but for diametrically opposed reasons. I think it's fair to paint with this broader brush, many Democrats would say companies are not taking enough down. There's too much hate speech. There's too much violence speech. There's too much disinformation about COVID or elections left up there. Republicans just the opposite, take down less, leave up, more so-called conservative speech. Yet they've agreed at least some of them, and most of the time on the remedies, which can sometimes be taking aim at section 230 or around these antitrust bills.

You definitely have Republicans and Democrats alike joining hands. I think almost, I don't want to say naively because I think they know what they're doing, but they're agreeing to work together to advance something that they want opposite outcomes from. So that's a very funny place to be. But again, I think it's fascinating and it's interesting. It's better than just having people lined up behind the letter R is over here and D's over there, but it doesn't necessarily mean that the mechanics of the bills are working or that the political pathway forward is very clear.

Emma Llansó:

I just want to 'plus one' what Matt was saying and really just underline for folks that at least part the bipartisan support for some of the competition bills that we've seen has depended, at least in part on keeping this two sides reading different things into the same text agreement going on. So that'll be interesting to see in, I think to a point maybe Josef was making earlier to see if that changes up at all in the next Congress to see how much of a grip that sense that support from the right needs to be coupled with this sense of reigning in online services, content moderation.

If that loosens a little bit, that might lead to more flexible or robust bipartisan support for competition bills that might open up some room to resolving some of the challenges that groups like CDT and others have pointed out of the potential significant downsides for content moderation that are inadvertently or intentionally put into the bill depending on who you ask on any given day. So I hope that there is some path forward to resolving those issues because getting some reform to our competition law would be a really big improvement. That would be a great goal for the next Congress to set itself as well. But I think I would hope to see a little bit more flex in that bipartisan support so that maybe there's not as big a risk of the coalition breaking apart if they address the content moderation issues squarely.

Justin Hendrix:

We're going to finish up here in just a minute, and this by the way, depending on how things go over the next couple days, may end up having to cut part of this out. But are there specific races that you're following or specific outcomes that you've noticed that you think are particularly impactful in the tech policy space and maybe Josef, I'll start with you on that.

Yosef Getachew:

Yeah, I think the races to wash now are in Nevada, Georgia, and Arizona. We already know that the Georgia Senate race between Herschel Walker and Raphael Warnock is going to go into a runoff. What makes that one interesting is Senator Warnock (D-GA) is sitting on the Senate Commerce Committee right now, and that's a critical committee for tech policy issues. Depending on the outcome of that race, I'm not entirely sure what would happen if Walker wins and whether he'll just take the Senate commerce seat or it will go to someone else. So that's a key seat on a key committee that could swing or at least have some more influence in some of these other issues. Same with Senator Cortez Masto (D-NV), she sits on the Senate Commerce Committee, I believe, and she's also in a tight race. So there are key members on the commerce committee that are up for reelection that could potentially change not just the dynamic of that committee, but what new folks on that committee they bring to the table.

Matt Wood:

Yeah, I hate to give short shrift to the House. I mean there's so many races and it's hard to believe as we speak at least there's still so many dozens of them are up in the air and not called yet. But I hope I'm not missing somebody obvious, but very few of them have been on these key committees and that's not the end of the story. I mean, you can have an opinion on tech policy and be an influential thinker on tech policy. Senator Wyden is a good example of this without sitting on either the commerce or judiciary committees, which are the two that we spent a lot of our time in front of. But yeah, I don't think any of the House races, the balance of the House is important and obviously it'll change not just who is the speaker of the House, but who controls those committees that we're talking about.

On the Senate side, as Josef said, yeah, I mean that's really where the game hangs in the balance. It's easier to see not just Senator Warnock being on the Commerce Committee, but with Senator Cortez Masto, her race actually explicitly involved references to Gigi Sohn, the pending fifth FCC commissioner, and her opponent, Adam Laxalt, a Republican campaigned on this. And I don't live in Nevada, I didn't track it back closely. I don't know what proportion of his campaigning was spent on that, but there were definitely enough tweets and statements here and there saying, "Send me to Washington. Senator Cortez Masto backs this radical wild-eyed FCC nominee, Gigi Sohn."

Those of us who know Gigi and who have followed her positions over the years know that she is not that far out of the mainstream and out of step. She's a good consumer advocate and I think that's why she's got so much static and company that have taken advantage of their ability to keep the FCC in a stalemate. But I mean, that's a funny race just because, right? I don't think it ought to have been, and yet it did get to be contentious even over technology issues very much through this warped lens that some Republicans are holding up to a consumer advocate appointed to serve the Communications Commission and thus far stalled and stymied in her attempt to get there.

Emma Llansó:

I think it no particular races that I'm tracking in the House, but the overall control of the chamber and especially the margin I think is going to be really important. I think we can expect, if we see, honestly, whoever controls either chamber, we're going to see a lot more of the oversight hearings, the questions for big tech hearings, and a lot of focus in all the relevant committees on tech, I would imagine. I think whoever happens to be in control of the committees where leadership is going, the actual membership of the committees will really be what ends up setting the tone of those hearings, setting the particular focus. So understanding at the end of the day, the big picture margins are really going to be important because that'll be what feels like the difference between having a mandate to do something and having maybe enough energy to do something if you can get enough other people to agree with you.

Justin Hendrix:

Well, we'll see how it all turns out. Certainly the landscape might be different by the time I publish this podcast on Sunday. So I'll do my best to pay close attention to all the specifics that you all have mentioned here and perhaps we can come back together at some point in the new year and see how it all shakes out. Matt, Emma, Yosef, thank you so much for joining me today.

Matt Wood:

Thanks for having us.

Emma Llansó:

Yeah, thank you.

Yosef Getachew:

Great to be here.