Tech Policy A Year Into The Trump Administration: Where Are We Now?

from the crystal-ball-testing dept

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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  • icon
    Roger Strong (profile), 22 Jan 2018 @ 2:06pm

    As the second link quotes Wolff about Trump's staff:

    Hoping for the best, with their personal futures as well as the country's future depending on it, my indelible impression of talking to them and observing them through much of the first year of his presidency, is that they all—100 percent—came to believe he was incapable of functioning in his job.

    This will have a bad effect beyond Trump:

    The permanent staff and those who take orders from the President are learning how to "handle" him like an infant. When to withhold key information and tell him only what he wants to hear. When to do what they believe Needs To Be Done regardless of what he ordered, since he'll probably change his mind or forget anyway.

    This is the culture that the next President will inherit.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Jan 2018 @ 2:51pm

    WHAT ARE THESE "serious allegations of wrongdoing by Trump, his family, and his associates"???

    STATE THREE. -- YOU DON'T STATE ANY SPECIFIC BECAUSE CAN'T. -- Just yet again repeating the mere word "allegations" without ANY actual substance.

    IF you mean "Trump-Russia" collusion, I LAUGHED first time heard, and ever since -- at you IDIOTS who believe whatever lies the corporate media puts out.

    You must have missed "the memo" this week that pins the actual crimes on unholy cabal of Clinton, FBI, and Obama admin who went to FISA with bogus "allegations" they all helped fabricate.

    reply to this | link to this | view in chronology ]

    • identicon
      Will B., 22 Jan 2018 @ 3:19pm

      Re: WHAT ARE THESE

      1) Allegations of sexual assault by Trump, including of underaged girls.

      2) Allegations of racist and other unsavory business practices by Trump before he took the presidency.

      3) Allegations of connections to Russia. Just because you "laughed" doesn't mean the allegations are not serious; appeal to ridicule will not save you from the fact that they are serious, and are being taken seriously.

      As an aside, you're a year late for the BUT HILLARY argument. Trump is in the office now; Hillary is no longer relevant to this discussion.

      reply to this | link to this | view in chronology ]

      • icon
        Richard (profile), 23 Jan 2018 @ 4:51am

        Re: Re: WHAT ARE THESE

        Allegations of connections to Russia. Just because you "laughed" doesn't mean the allegations are not serious;

        The allegations would be serious if Russia was still the Soviet Union - ie a world power with a political agenda of world domination. However Russia is no longer that, and Russian ambitions have reverted to what they were in the 19th century. These were:

        1) To restore to Russia the lands that were conquered during the Baltic crusades.

        2) To free the Balkans and the middle east from Islamic hegemony (in the 19th century this was directed against the Ottoman Empire and resulted in freedom for Greece, Serbia, Bulgaria etc).

        The latter ambition comes from the fact that Russia sees itself as the heir to the Byzantine empire.

        Now Russian policy towards the US is basically predicated of US policy towards these regional issues. It has really nothing to do with domestic US politics. If the Russians did support Trump (and whether that is really true is still somewhat uncertain) it was not because they actually wanted him to win - it was because they wanted Hilary to win but be in a weak position and unable to pursue the policies that the Russians disliked.

        Of course none of this is really a negative against the Russians. Every country has a legitimate interest in how other countries are governed (after all who coined the term "regime change"?). On the other hand those who co-operate with a foriegn power do run the risk of being called traitors - which is exactly what happens to certain politicians in Russia who have US support. Having said that I think that the current fuss is overblown - because no domestic US interests are at stake here.

        reply to this | link to this | view in chronology ]

        • identicon
          Wendy Cockcroft, 23 Jan 2018 @ 7:20am

          Re: Re: Re: WHAT ARE THESE

          Roger, I'd probably agree with you if it was only about releasing embarrassing emails but apparently it goes beyond that to actually interfering with the voting process itself and by massaging public opinion.

          Yes, I know America does it too but to be horribly blunt when a tinpot dictator takes over a banana republic it doesn't affect the rest of the world. When one is catapulted to power in America, however, it does.

          Result: China's ascendancy is growing to the point where America will end up being eclipsed. It's not a matter of if at this point, but when. Under Obama's neocon regime it was happening, all right, but more slowly. Under Trump it accelerates because America is pulling back from moral leadership on the world stage, which abhors a vacuum as much as nature does.

          I look grimly forward to a harsher, more cruel world in which traditional morality is reduced to the control (or not) of female sexuality while the poor starve in the streets. Heck, we've got that here: https://www.mirror.co.uk/news/uk-news/number-brits-dying-malnutrition-hunger-8611991

          reply to this | link to this | view in chronology ]

          • icon
            Richard (profile), 23 Jan 2018 @ 11:48am

            Re: Re: Re: Re: WHAT ARE THESE

            AS I said - the best inside indications about what the Russians were up to seem to say that they did't actually want Trump to win they just wanted the next president to be somewhat neutered in his/her behaviour towards Russia.
            What they wanted was a narrow Hillary victory with the right saying "we was robbed". They got the opposite.
            Actually Trump has proved not to be much of a positive to them in practice. Although he is less Russophobic than the Obama/Hillary axis he is also much more trigger happy - hence the cruise missile attack on Assad - which Obama was too cautious to do.

            reply to this | link to this | view in chronology ]

        • identicon
          Will B., 24 Jan 2018 @ 10:57am

          Re: Re: Re: WHAT ARE THESE

          Here's the thing:
          None of that matters.

          IF Trump colluded with a foreign power to influence the election, then - **regardless of that foreign power's interest in domestic law, or its ultimate aim in influencing the election** - that is still treason. Doesn't matter if Russia secretly wanted Trump to lose.
          This *is* a *serious allegation.* Which is precisely what was asked for: three examples of serious allegations. Wasn't asked for proof, nor personal opinion, not an analysis; just three examples of serious allegations, thus I gave 'em.
          That said, you are moving the goalposts. Should mind that.

          reply to this | link to this | view in chronology ]

          • icon
            Richard (profile), 24 Jan 2018 @ 11:34am

            Re: Re: Re: Re: WHAT ARE THESE

            Trump colluded with a foreign power to influence the election, then - regardless of that foreign power's interest in domestic law, or its ultimate aim in influencing the election - that is still treason.

            Technically yes - but if the net effect of all the focus on these issues is that the republicans get to pass the biggest tax cut in history while everyone is looking the other way then who is really betraying the American public?

            reply to this | link to this | view in chronology ]

            • identicon
              Will B., 24 Jan 2018 @ 11:42am

              Re: Re: Re: Re: Re: WHAT ARE THESE

              The man who colluded with a foreign power to influence the election. How many times do we need to point out here on Techdirt that if you don't want people you disagree with to do terrible things, you need to speak out when people you agree with do them?

              reply to this | link to this | view in chronology ]

              • identicon
                Will B., 24 Jan 2018 @ 12:01pm

                Re: Re: Re: Re: Re: Re: WHAT ARE THESE

                Reading back over tbis, I am having a hard time determining if you are for the tax cuts and saying nobody is really betrayed, or against them and saying Congress is really betraying us. Either way, you are once again shifting the goalposts; we are discussing allegations against Trump, includig allegations that he colluded with Russia, and the tax breaks you mentioned are not part of that discussion.

                reply to this | link to this | view in chronology ]

                • icon
                  Richard (profile), 25 Jan 2018 @ 1:46am

                  Re: Re: Re: Re: Re: Re: Re: WHAT ARE THESE

                  I am against the tax cuts and saying that by focusing on the Russia thing people are missing the point and ignoring the important issues whilst making a fuss about something that doesn't matter. In other words Trump is doing his Zaphod Beeblebrox role perfectly and you are falling for it.

                  reply to this | link to this | view in chronology ]

              • icon
                Richard (profile), 25 Jan 2018 @ 1:51am

                Re: Re: Re: Re: Re: Re: WHAT ARE THESE

                I don't agree with Trump on most issues and I think he is a dangerous president I just think that the Russia thing is a stupid overreaction to something unimportant.

                You aren't going to get him out of office by doing this - and even if you did you would almost certainly get someone even worse.

                reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 22 Jan 2018 @ 3:46pm

      Re: WHAT ARE THESE "serious allegations of wrongdoing by Trump, his family, and his associates"???

      Same old claim, same old response:

      Wikipedia: Links between Trump associates and Russian officials

      128 citations.

      Wikipedia: Russian interference in the 2016 United States elections

      403 citations.

      That of course doesn't include Trumps sex crime allegations - much of which, from "grab her by the pussy" to walking into teen-age model's dressing rooms - he's corroborated by boasting about it. Or outright fraud like Trump University that he's settled in or out of court.

      You must have missed "the memo" this week...

      So the Democrats hired Fusion GPS to compile a dossier on Trump. Just like Republicans hired them earlier in the campaign to compile a dossier on Trump and other Republican presidential candidates.

      Welcome to what both parties have always done. (Except perhaps for Sarah Palin.)

      ...pins the actual crimes on unholy cabal of Clinton, FBI, and Obama

      Now you're just giving in to fantasy.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jan 2018 @ 3:51pm

      Re: WHAT ARE THESE "serious allegations of wrongdoing by Trump, his family, and his associates"???

      We aren’t laughing with you. We are laughing AT you.

      reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 23 Jan 2018 @ 6:31am

      Re: WHAT ARE THESE "serious allegations of wrongdoing by Trump, his family, and his associates"???

      WHAT ABOUT THE ALLEGATIONS THAT ABRAHAM LINCOLN BIRTH CERTIFICATE WAS FROM NIGERIA?!?!?!?

      reply to this | link to this | view in chronology ]

      • icon
        Richard (profile), 23 Jan 2018 @ 11:54am

        Re: Re: WHAT ARE THESE "serious allegations of wrongdoing by Trump, his family, and his associates"???

        I can vouch for those - just the other day I got an email from someone claiming to be one of his descendants saying that he needed someone to look after his fortune, which apparently takes the form of some gold bars that have been hidden in Nigeria for the last 150 years.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jan 2018 @ 7:07am

      Re: WHAT ARE THESE "serious allegations of wrongdoing by Trump, his family, and his associates"???

      IF you mean "Trump-Russia" collusion, I LAUGHED first time heard, and ever since -- at you IDIOTS who believe whatever lies the corporate media puts out.

      Keep laughing. Just like Flynn, Manafort, Gates, and Popadopalous. I'm sure they thought it was funny too.

      reply to this | link to this | view in chronology ]

  • identicon
    Lawrence D’Oliveiro, 22 Jan 2018 @ 2:51pm

    “this is how we've safely preserved our democracy for 200 years”

    Is the US officially a “democracy”? Seems some keep insisting otherwise ...

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Jan 2018 @ 2:52pm

    This merely blames Trump without any more cause than has an "R" by his name.

    "Net neutrality" -- I've yet to see defined so isn't merely advantaging some corporations over others. Damage is just FUD for now and will never be more than opinion.

    "intermediary immunity" -- Euphemizes corporations profiting off obvious advertisements of criminality. Criminals are always for immunity. But corporations have responsibilities to police against what this person and Masnick want to operate in the open.

    Not a hint of the censorship that Google / Facebook / Twitter are now openly imposing against conservatives and pro-Americans. This person is another fascist who calls corporations censoring certain viewpoints "policing".

    reply to this | link to this | view in chronology ]

    • identicon
      Will B., 22 Jan 2018 @ 3:24pm

      Re: This merely blames Trump without any more cause than has an

      https://en.m.wikipedia.org/wiki/Net_neutrality

      "Net neutrality is the principle that Internet service providers must treat all data on the Internet the same, and not discriminate or charge differently by user, content, website, platform, application, type of attached equipment, or method of communication."

      There ya go. If you want to discontinue your disingenuous arguments about definitions, feel free to do so at any time.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jan 2018 @ 3:52pm

      Re: This merely blames Trump without any more cause than has an "R" by his name.

      I love how you sovcits don’t understand the 1st amendment, much less all the other ones.

      reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 22 Jan 2018 @ 9:55pm

        Re: Re: This merely blames Trump without any more cause than has an "R" by his name.

        Misread that word as "soviets" and your comment remained just as valid.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jan 2018 @ 4:37pm

      Re: This merely blames Trump without any more cause than has an "R" by his name.

      You advantage the RIAA over all other corporations, you dumb blue fucknugget.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Techliet, 22 Jan 2018 @ 3:21pm

    May God help Us!

    Dont just kno what to say “this is how we've safely preserved our democracy for 200 years”

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 23 Jan 2018 @ 6:35am

    Trump admin has been a complete shit show. Nothing to dispute here indeed. I am interested in how the midterms will play out which should send some pretty clear messages to the political class. The question will be if it's a message for the best or worst.

    In any case, the US sorely needs more political parties. This alone would help in many, many ways.

    reply to this | link to this | view in chronology ]

    • icon
      Richard (profile), 23 Jan 2018 @ 1:29pm

      Re:

      In any case, the US sorely needs more political parties. This alone would help in many, many ways.|

      Herein like the problem. In practice every democracy is a compromise between fairness and efficiency.

      Britain and the US have the most unfair voting systems amongst the long term stable democracies and the result is that frequently the results of elections are unfair and disenfranchise a big portion of the electorate. (AS has happened several times in the UK and in 2000 and 2016 presidential elections.

      reply to this | link to this | view in chronology ]

      • identicon
        Wendy Cockcroft, 24 Jan 2018 @ 2:21am

        Re: Re:

        I'm a recent convert to the idea of proportional representation. That would go a long way to solving the problem.

        reply to this | link to this | view in chronology ]

        • icon
          Richard (profile), 24 Jan 2018 @ 5:00am

          Re: Re: Re:

          The flip side is of course rapid turnover of governments and/or endless coalition negotiations that sometimes leave you with no government at all for a while.

          However I personally don't believe these objections are strong enough to justify a system that is at root unfair - and in any case.

          1 The US seems to have achieved a state of "no government" even with its present system.

          2 The UK has a coalition that hangs on a tiny extremist party even with its present system.

          3 The situation of endless shifting coalitions also seems possible under the UK system - it happened in the period immediately after the first world war.

          reply to this | link to this | view in chronology ]

          • identicon
            Lawrence D’Oliveiro, 24 Jan 2018 @ 10:31am

            Re: The flip side is of course rapid turnover of governments and/or endless coalition negotiations that sometimes leave you with no government at all for a while.

            Which has yet to happen in New Zealand in 7 general elections under the Mixed-Member Proportional (MMP) system. As I recall, the longest coalition negotiation was the first one, at 6 weeks.

            reply to this | link to this | view in chronology ]

            • icon
              Richard (profile), 24 Jan 2018 @ 11:40am

              Re: Re: The flip side is of course rapid turnover of governments and/or endless coalition negotiations that sometimes leave you with no government at all for a while.

              And of course "having no government" is not necessarily a bad thing..

              reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 23 Jan 2018 @ 9:17am

    "this is how we've safely preserved our democracy for 200 years"

    You could probably turn this around if you started pushing for some of the good things about the U.S. like freedom of speech (or of anything) once in a while in an international agreement instead of pushing your ever worsening I.P. system every time.

    reply to this | link to this | view in chronology ]

  • identicon
    Chip, 23 Jan 2018 @ 11:29am

    Why are you talking about Trump! What about Obama nd Clinton and Carter and Dukakis and all the other people who AREN"T president?

    Every Ntion eats the Paitn chips ist Seserves!

    reply to this | link to this | view in chronology ]

  • icon
    renosablast (profile), 23 Jan 2018 @ 3:31pm

    is this CNN?

    Coulda swore I was reading Techdirt....did I somehow get redirected to CNN?

    reply to this | link to this | view in chronology ]


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