How Big Tech Is Preparing for a Biden Presidency

April 11, 2020

Washington Monthly

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Three days after Barack Obama won the 2008 presidential election, he took press questions standing shoulder-to-shoulder with a figure now vilified by his base: ex-Google CEO Eric Schmidt.

Back then, Big Tech didn’t need to ask if it had a seat at the table of a Democratic presidential transition. But times have changed. Now, Silicon Valley has to take a different route to gain power and influence. It floods the Beltway with cash spent on lobbyists, think tanks, Metro ads—anything to get the suits to back off.

If Joe Biden wins in November, you can bet that Big Tech’s representatives will do the same thing as every other industry’s political strategists: scour the list of more than four thousand appointments across the executive branch the new president needs to make, and figure out which of their loyalists are ready for a spin through the government’s revolving door.

That’s nothing new; between 2008 and 2016, 55 former Google employees took powerful jobs in the Obama administration, and 197 former Obama officials revolved out to Google. But now that there’s a fast-growing bipartisan constituency that wants to break up Big Tech, the stakes are high for the entire industry.

Now is the time for that constituency to identify which executive branch jobs Big Tech cares most about. Depending on how you define “tech industry,” the answer could be all of them. Most Americans seemingly define “tech” as any product or service that has computer code as an input at some point in its production cycle. But in a post-iPhone world, that definition touches just about everything.

Tech isn’t so much a sector as the method of distribution for every other sector. That means Silicon Valley has a stake in almost every part of the regulatory state. Uber, Lyft, and self-driving car manufacturers are obviously interested in the next appointees to the National Transportation Safety Board. Fintech startups regularly schmooze with financial regulators at the Office of the Comptroller of the Currency (OCC). The entire gig economy certainly hopes to maintain an anti-worker majority on the National Labor Relations Board. Defense contractors like Palantir and Anduril—not to mention cloud computing services—want the Pentagon to hear their pitches.

That said, there are some jobs that we can reasonably assume virtually all of Silicon Valley cares about. While few of these positions were tailor-made to regulate the digital economy, many have jurisdiction over individual elements of common digital business models. Thus far, the industry has had to work with Trump appointees who have been mostly favorable to their bottom lines; while few come from the tech world specifically, almost all share an anti-regulatory zeal from which the industry happily benefits.

Broadly speaking, we can clump the jobs most relevant to Big Tech into four categories: Oversight, Cybersecurity, Antitrust and Privacy, and Business Opportunities. With Biden poised to secure the party’s nomination, some progressives may fret that a K Street-favored Democrat is their only hope to unseat Trump. But we are not powerless to influence the trajectory of a Biden administration. The first step is to predict how Big Tech will look to solidify its grip on power. Look no further than the powerful government positions it will try to fill with its own darlings.

Oversight

Big Tech’s most obvious mark will be the Chief Technology Officer of the United States. This is the president’s top adviser on pretty much everything technology—from smartphones to solar panels. Google met with Obama CTO Todd Park 22 times in his two-year tenure, before he was replaced by … Google Vice President Megan Smith.

But the CTO is a deputy to the Director of the Office of Science and Technology Policy, which provides the president with raw scientific information to guide policymaking. Other OSTP jobs include the Senior Adviser for Internet, Innovation and Privacy, and Deputy Director for Policy (Obama’s now works for Schmidt Futures — yes, Google’s Schmidt.) There are myriad other advisers of note. Obama’s National Economic Council also had a Special Assistant to the President for Economic and Technology Policy. Plus, tech CEOs themselves can be appointed to the President’s Council of Advisors on Science and Technology. Even if these roles have little policymaking authority, they carry the potential for tremendous influence.

When it comes to actual decision-makers, though, few policy areas matter more to Big Tech than intellectual property rights. There’s a reason why 61 companies and trade groups pleaded for Trump to keep Obama’s little-known Patent and Trademark Office Director Michelle Lee on the job. She entered government from Google and slashed the number of patent lawsuits that big platforms face. She ultimately resigned in 2017, and currently enjoys a C-Suite job at Amazon Web Services.

The PTO Director is an undersecretary in the Commerce Department, which also houses the Director of Digital Economy and the Digital Economy Board of Advisors, a sounding board for the Commerce Secretary. It was composed almost exclusively of lobbyists under Obama.

Moreover, onlookers don’t often think about how much Silicon Valley cares about trade. There’s a reason why Amazon scooped up former US Trade Representative Michael Ward Punke for a lobbying job. Through trade deals, Big Tech can both circumvent domestic law—as happened with the USMCA—and spread its business-takes-all data regime to the Global South. Simply put, Big Tech knows how to play the trade game.

Cybersecurity 

Since it’s a concern for the whole of government, every department and agency has individual cybersecurity positions with historical connections to the revolving door.

Take Nuala O’Connor. She was a Big Law privacy lawyer who took a job as counsel at DoubleClick, an early targeted ad company. From there, she revolved into government to pioneer the first Chief Privacy Officer position at DHS in 2002. After two years, she went on to stints at Amazon and General Electric before running the Center for Democracy and Technology, a think tank overwhelmingly funded by Silicon Valley. These days, she’s a Senior Vice President at Walmart.

DHS also maintains a Data Privacy and Integrity Advisory Committee that grants lobbyists and corporate lawyers direct access to the Homeland Security Secretary; current committee members work for Amazon, AT&T, Toyota AI Ventures, Accenture, and Northrop Grumman.

In fact, one of the government’s most powerful cybersecurity bodies isn’t technically a cybersecurity body at all. That’s the Communications Security, Reliability and Interoperability Council, a panel meant to offer feedback on new technology to the Federal Communications Commission. Across all four of its iterations since 2011, when it was created, the commission has overrepresented corporations and business voices. The result has strengthened the FCC’s laissez-faire attitude when it comes to cybersecurity.

Antitrust and Privacy

Of course, the backlash against Big Tech platforms mostly centers on two concerns: privacy violations and monopoly power. That’s what led Congresswomen Anna Eshoo and Zoe Lofgren (who both represent Silicon Valley) to propose a new Digital Privacy Agency. Still, Silicon Valley knows precisely which jobs within the existing bureaucracy to target in antitrust and privacy protection.

Most are in the Federal Trade Commission. It’s not just actual Commissioners. There are positions like the Director of the Office of Policy Planning, Director of the Bureau of Economics, and General Counsel that significantly shape FTC investigations. Right now, each of these positions is held by former professors from George Mason University’s Scalia Law School, a notorious conduit for Charles Koch’s cash and ideology. The Revolving Door Project’s research has found that one out of nine attorneys who have passed through the FTC’s Bureau of Competition since 2014 had a degree from George Mason. Organizations like UnKoch My Campus have documented how Koch uses universities like George Mason as the first step of a pipeline into infiltrating government.

The FTC is also America’s de facto privacy regulator. It is grossly understaffed. Last April, even Republican Chairman Joseph Simons complained that the Commission only has 40 employees working on the issue. The FTC’s privacy protection powers were also written before the digital era, which limits their applicability to Silicon Valley. Hence Facebook’s scrawny punishment over the Cambridge Analytica scandal—a fine whose $5 billion price tag equals about 11 weeks of the company’s cash-flow—and which was secured, in part, thanks to former FTC directors revolving out to serve as Facebook’s counsel. Indeed, 63 percent of top FTC officials over the last two decades either worked in tech before joining the government, left the government to work in tech, or both.

The Department of Justice’s current Assistant Attorney General for Antitrust was recently sidelined from the tech investigations since he is a one-time Google M&A lobbyist. But these cases will almost certainly last into the next administration, making his position an important job.

Plus, the tech industry has another vector for playing defense: the Office of Information and Regulatory Affairs (OIRA). The draft implementation of an executive order Trump signed in February requires agencies to follow OIRA’s cost-benefit analysis framework when considering regulations on artificial intelligence. This superficially sensible rule could block any constraints on big business: sycophantic economists at OIRA regularly twist numbers to reach prepackaged business-friendly conclusions. OIRA hamstrung President Obama’s regulatory agenda. There’s no reason to think a corporate appointee wouldn’t do the same for Big Tech.

Business Opportunities

The Pentagon’s JEDI controversy highlighted how much money and power flows through cloud computing contracts: The Capitol Forum and ProPublica exposed last August how CEOs like Eric Schmidt and Reid Hoffman made direct inroads with military leaders through joining the Defense Innovation Board, whose members gain “full access to the department and its entities.”

ProPublica also highlighted the Defense Digital Service, a unit of former Google and Amazon coders brought in to “challenge the status quo, burdensome policies and established bureaucracies” at DOD. This usually meant awarding contracts to their old employers.

An even bigger money-maker, though, could be the Federal Chief Information Officer job at the Office of Management and Budget. This official oversees federal IT projects and makes recommendations to the whole of government through the “E-Gov” office they run. The Federal CIO also chairs the Technology Modernization Board, which manages a slush fund for IT projects across the federal agencies. If you want money from the fund, or contracts across Washington, you want this person on your side.

These are just a handful of the positions that will matter to the next administration’s technology policy—and they may well be overshadowed by new positions the next president will create. No one doubts that 21st-century governments need to understand, regulate, and constrain the technology sector. As a consequence, whole new jobs, bureaucracies, and legal interpretations aimed at accomplishing those goals are inevitable.

Still, it’s crucial that progressive activists begin thinking this way about the executive branch now. After all, you can’t make a difference in Washington without understanding the mechanics of power and influence. Big Tech gets it. It’s high time the rest of us do, too.

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