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With President Joseph Biden launching a flurry of new Executive Orders designed to un-do every major accomplishment of the Trump administration, it’s perhaps no surprise that the Biden team is now looking at how it can roll back any of Trump’s moves related to social media and Internet regulation. The idea here is simple: everything Trump proposed regarding social media and the Internet must be wrong, misguided and callously calculated to inflict as much harm as possible on the American people, so immediate steps must be taken to reverse these moves. Let’s take a closer look at some of the big issues that might now be on the table in 2021…
First up, most likely, will be the return of Net Neutrality as a major talking point of the Biden-friendly FCC. During Trump’s tenure, the acting commissioner of the FCC (Ajit Pai) repealed Net Neutrality, claiming that such rules were anti-business and anti-innovation, not to mention a bit archaic (the original framework dates back to a period when most ISPs were “pure play” broadband providers, and not parts of major media conglomerates spanning many different industries). But the Democrats nonetheless claim that the refusal to embrace Net Neutrality as a guiding cornerstone of Internet policy harms small content creators, Silicon Valley social media companies and tech juggernauts like Netflix. So it won’t be a major surprise to see the return of Net Neutrality in 2021 as a way to prohibit ISPs from discriminating against certain types of content or content creators.
The Digital Divide
In order to reinstall Net Neutrality, the Democrats will have to reclassify Internet Service Providers (ISPs) as “Tier II” telecom service providers. That opens up a whole new can of worms, including the very real concern that the U.S. government will start to regulate the big ISPs just like public utilities. And we all know how innovative and customer-friendly most utilities are, right?
And, utility-style regulation also raises the prospect that the U.S. government will be in a position to dictate that the ISPs should roll out generous subsidies to lower-income Americans (and possibly, to certain demographic groups), all in the name of closing the “Digital Divide.” And, given the propensity of Democrats to push for as much regulation as possible, it’s also possible that the “Digital Divide” will serve as a rallying point for even more rules and regulations on what ISPs can – and cannot – do when entering certain neighborhoods or regions. The next time you get your utility bill, just check out all the special programs, discounts and subsidies that you end up paying for each month. That will give you a good idea of where things could be headed.
This is where things get interesting, since President Biden is on the record saying that he would support the rollback of Section 230 protections for social media companies. Currently, companies like Facebook and Twitter get nearly unlimited legal liability when it comes to content published by their users. But if Section 230 protections are rolled back, a company like Facebook would be held legally liable for any sort of negative content (e.g. hate speech) appearing in news feeds, just like any other publisher would. There’s just one big catch here – Trump favored the rollback of Section 230 protections for social media giants during the bitterly contested 2020 election campaign, and it’s unlikely that the Biden team would do anything that even vaguely suggests Trump might have been right. So, any major changes to the Communication Decency Act of 1996 (from whence Section 230 derives) might be long in the making.
What’s worth noting is that regulation of social media and the Internet seems to follow the latest trend or fad. Net Neutrality was a hot topic in Silicon Valley back in the 2010s, but then focus shifted to areas like privacy and data protection. Now, focus seems to have shifted again, to topics like censorship and antitrust. So that raises an interesting question: Will the Biden FCC take a retrospective approach to regulation based on the state of the world during the first Obama-Biden administration nearly a decade ago, or will it take a more forward-looking approach to regulation based on where we find ourselves in 2021?