As Biden seeks to wrangle the White House with Trump, technology policy disputes become contentious

As the Nov. 5 election approaches and former President Donald Trump is one step away from the Republican nomination, President Joe Biden’s administration is stepping up its regulatory efforts, especially efforts to focus on so-called Big Tech.

When advocates of expanding U.S. antitrust law to rein in Big Tech failed to pass reforms through Congress when Democrats had full control of the government from 2021 to 2023, the Biden administration took up the fight in its regulatory federal agencies. Meanwhile, Biden early in his administration named law professor Lina Khan to head the Federal Trade Commission and ideological ally Jonathan Kanter to head the Justice Department’s Antitrust Division.

The latest example of the White House’s “whole of government” effort to increase scrutiny of the tech industry is the agreement reached between the FTC and the Justice Department to split investigations into leading AI chipmaker Nvidia and software giant Microsoft’s investment in ChatGPT maker OpenAI. Khan recently told a Harvard Law School audience that because “the artificial intelligence space… is changing so rapidly,” the FTC wants to “make sure that the opportunity for competition and the potential for disruption is preserved and not the moment is hijacked.” by some of the existing dominant companies to double down on their dominance.”

But critics have doubts. Tom Hebert, director of competition and regulatory policy at Americans for Tax Reform, told the Washington Examiner: “Antitrust attacks on AI are an illegal use of government power and will put us behind Communist China in the global AI race.”

He then pointed out the irony in the Biden administration’s analysis of the development of artificial intelligence: “Joe Biden ran for president promising to ‘end cancer as we know it.’ Now Biden’s antitrust attack on artificial intelligence could kill technology that is already used to detect and treat cancer, and could one day help us find a cure.”

Biden’s Justice Department is also pushing back against already established business practices in the tech space. A federal court in Alexandria, Virginia, recently ordered that the Justice Department’s case against Google be a bench trial rather than a jury trial. The case, originally filed in January 2023, alleged that Google monopolized multiple open online display advertising markets spanning its ad technology stack. The stack consists of technology tools that connect website publishers who sell advertising inventory to potential advertisers on the open network. The case will be heard this September in the United States District Court for the Eastern District of Virginia.

Cases brought under the Biden administration against Amazon, Meta and Apple are ongoing.

The telecommunications industry hasn’t escaped the White House’s regulatory wrath either. Biden called for restoring net neutrality rules in his July 2021 “Executive Order on Promoting Competition in the American Economy.” On April 25 of this year, the Federal Communications Commission complied, voting to restore open internet rules and reclassify broadband as a service telecommunications title II. Challenges to the regulations will be heard first by the 6th U.S. Circuit Court of Appeals, selected randomly to hear collectively the challenges filed in the seven circuits.

As similar rules were repealed during the Trump administration, net neutrality remains a rare partisan divide amid a broader backlash against big companies and the tech industry that has resisted collapsing along party lines.

The repeal under Trump sparked unprecedented public interest in the telecommunications issue, with opponents warning that the rollback would mean “the end of the internet as we know it.” However, following the repeal, there was no widespread site blocking or other service disruptions. Industry groups opposed to restoring net neutrality rules say the FCC has acted beyond its authority and that such a change will discourage private investment in broadband infrastructure. FCC Chair Jessica Rosenworcel told reporters she had “absolute confidence that what we have proposed is consistent with the distinguished opinions issued in the D.C. District and the Supreme Court.”

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In a sign that Biden agency leaders are seeking to step up regulatory action outside the tech space, the Justice Department filed a lawsuit against Live Nation Entertainment’s Ticketmaster last month. The complaint accuses the company of monopoly status and other “unlawful conduct that frustrates competition in markets throughout the live entertainment industry.” But critics say the case is a politically motivated attempt to appeal to younger voters in the wake of website crash issues related to ticket sales for Taylor Swift’s The Eras Tour.

Time will tell what impact this crackdown on the tech industry and increased antitrust enforcement will have on the presidential election. An April 2024 poll by the left-leaning industry group Chamber of Progress found that 77% of voters in battleground states wanted the next president to “focus on growing tech jobs and services rather than focusing on regulating Amazon,” Google and Apple.”