Sep 012018

This post originally appeared on Techdirt on 1/22/18.

Shortly after Trump was elected I wrote a post predicting how things might unfold on the tech policy front with the incoming administration. It seems worth taking stock, now almost a year into it, to see how those predictions may have played out.

Most of this post will track the way the issues were broken down last time. But it is first worth commenting how in one significant overarching way last year’s post does not hold up: it presumed, even if only naively in the face of evidence already suggesting otherwise, that the Trump administration would function with the competency and coherence that presidential administrations have generally functioned with in order to function at all, let alone effectively enough to drive forth a set of preferred policy positions. There seems to be growing consensus that this presumption was and remains unsound.

Furthermore, the normal sort of political considerations that traditionally have both animated and limited presidential policy advocacy do not seem applicable to this presidency. As a result, conventional political wisdom in other areas of government also now seems to be changing, as the rest of the political order reacts to what Trump actually has done in his year as President and prepares for the next major round of elections in 2018.

Free speech/copyright – For better or for worse, the Trump administration does not seem to be particularly interested in copyright policy, but it has nonetheless had an effect on it. The denial of the cert petition in Lenz following a strange brief from the Trump Administration’s Solicitor General and the appointment of Justice Gorsuch will leave a mark, as without teeth being put back into the DMCA to deter abusive takedown notices, content will still be vulnerable to illegitimate takedown demands of all sorts of speech, including political speech. If there’s one thing the Trump administration has accomplished it has been to make people much more politically aware, and we’ve already seen instances of people using the DMCA’s notice and takedown system to try to suppress speech they don’t like. To be fair, we’ve seen people of all political persuasions do this, but the concern is heightened when the views of those who already have power to suppress the views of those that do not. (Note also: it is not clear that a Clinton Solicitor General would have written an any more solicitous brief in support of Lenz, or that a justice other than Gorsuch would have changed the cert vote. Plenty of Democratic appointees have been disappointing on the copyright front. However, it is a policy result that is directly due to the new administration.)

More interestingly, however, is the impact on future copyright policy (and, indeed, lots of other tech policy) caused by the political toll the Trump administration has been having on the GOP. The impending retirements of Reps. Goodlatte and Issa, for instance, will lose the tempering influence they have sometimes had on some of the worst copyright policy pushes.

On the speech front, however, it looks like all the worry about the Trump administration last year has been born out. From Trump’s frequent and overt diminishment of a free and independent media, to his constant legal threats to sue critics, to his administration’s outright abuse of power to try to unmask them – and more – the Trump presidency tends to be an extremely cogent example of why it is so critically important to protect the right of free speech from government incursion.

Mass surveillance/encryption – This issue is always a mess, but now it’s a mess in new ways that have realigned some of the political leanings, which may create opportunity but also creates new reasons for concern.

In litigation challenging digital surveillance the details of the surveillance obviously matter: what government authority is trying to do what, to whom, and under what statutory authority all affects the judicial inquiry. But in some ways none of these details matter: the essential question underpinning all these cases is what a state actor can constitutionally do to invade the privacy of its people. Whether the state actor is wearing an FBI hat, a CIA hat, an NSA one, a local police one, or some other official hat doesn’t really matter to the person whose private dealings are now exposed to government review. But President Trump’s unpopularity, petulance, and track record of threatened, if not actual, attacks on his political enemies should make it easy to see the problem with giving the government too much surveillance power since it means giving someone like him that much surveillance power. His attempts to increasingly politicize our various investigatory agencies further drives home this point because the more government surveillance is politicized, the people with opposing viewpoints will be hurt by those with political power able to wield this surveillance power against them.

On the other hand, there are serious allegations of wrongdoing by Trump, his family, and his associates, including allegations that raise serious national security concerns, and it is only because of the work of many of these investigatory agencies that these allegations stand any chance of being uncovered and appropriately prosecuted. And as a result, many who should be fearing the power of these investigatory agencies, simply because as state actors their behavior always needs to be subject to check, are now suddenly feeling quite cheerful about enabling these agencies and enhancing their power, even where the Constitution should forbid it.

Figuring out how to empower police in a way that protects our democracy without undermining the civil liberties that also protect our democracy requires a careful, nuanced conversation. Yet it’s not one that we are having or seem likely to have under this administration. But if these agencies do become politicized as a result of Trump’s presidency, it may then be too late to have it.

Net neutrality/intermediary immunity – Things are bad on both these fronts, although the impact of the Trump administration is different on each.

With regard to the former topic, the elevation of Chairman Pai by Trump opened the door to the most direct and obvious incursion on Net Neutrality protection. There’s no point in dwelling on it here; read any of the many other posts here to see why. While it is possible that any Republican president would have made a similar appointment, a Democratic president would likely have made an appointment resulting in a different balance of power among the FCC commissioners. But there is also something rather Trumpian about Pai’s move as well, the choice to govern by brute force rather than consensus, and it is also possible that a more politically-attuned Republican administration would have encouraged its appointee to have used a lighter hand in setting policy, particularly in light of significant opposition against this particular move, including from both sides of the aisle.

On the intermediary immunity front Section 230 is under heavy attack. Fortunately the Trump administration itself does not seem to be directly stoking the legislative fires; some of the most significant attacks on Section 230 have largely been instigated by Democrats (although with some bipartisan support). In general the Democrats appear to be a party whose political fortunes are on the rise due to Trump’s unpopularity and resulting GOP incumbent retirements, including (as discussed above) some who have historically been helpful on the tech policy front. Although there are some outstanding Democrats on these sorts of issues (i.e., Wyden, Lofgren) tech policy has not often followed standard red-blue party lines, and a legislative switch back to blue overall will not necessarily lead to better policy on these issues overall as well.

Especially not when the Trump administration has in many ways been inspiring the attacks on platforms. It has become easy, for instance, for people to fault social media for his rise and for some of the worst things about his presidency (e.g., provoking North Korea on Twitter). As with mass surveillance Trump’s unpopularity is tempting many to see as palatable any policy they think might temper him. Unfortunately, like with mass surveillance, this belief that a policy might have this tempering quality is often wrong. For the same reason that Trump is Exhibit A for why we should not do anything to enhance government surveillance power, it is also Exhibit A for why we should not do anything to undermine free speech, including online free speech, which these legislative attacks on platforms only invite.

Internet governance – Trump has been a disaster on the foreign policy front, measurably lowering the esteem of America in the eyes of the world. True, as discussed last year, by abandoning the TPP he spared us the harm to the important liberty interests the TPP would have imposed, but in nearly every other way he has undermined those same interests by making it more tempting and politically easier for other countries to try to set policy that will affect how everyone, including Americans, gets to use the Internet.

What I wrote last time remains apt:

Unfortunately Trump’s presidency appears to have precipitated a loss of credibility on the world stage, creating a situation where it seems unlikely that other countries will be as inclined to yield to American leadership on any further issues affecting tech policy (or any policy in general) as they may have been in the past. … It was already challenging enough to convince other countries that they should do things our way, particularly with respect to free speech principles and the like, but at least when we used to tell the world, “Do it our way, because this is how we’ve safely preserved our democracy for 200 years,” people elsewhere (however reluctantly) used to listen. But now people around the world are starting to have some serious doubts about our commitment to […] freedom and connectivity for all.

But last year I noted that his administration also created opportunity to push for those values, and that view still holds today:

So we will need to tweak our message to one that has more traction. Our message to the world now is that recent events have made it all the more important to actively preserve those key American values, particularly with respect to free speech, because it is all that stands between freedom and disaster. Now is no time to start shackling technology, or the speech it enables, with external controls imposed by other nations to limit it. Not only can the potential benevolence of these attempts not be presumed, but we are now facing a situation where it is all the more important to ensure that we have the tools to enable dissenting viewpoints to foment [into] viable political movements sufficient to counter the threat posed by the powerful. This pushback cannot happen if other governments insist on hobbling the Internet’s essential ability to broker these connections and ideas. It needs to remain free in order for all of us to [remain free] as well.

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