Biden’s executive order: What it means for Big Tech and you

President Biden's new executive order "on Promoting Competition in the American Economy," talks a big game on promoting competition across the U.S. For the tech portions of the document, it's not clear how much walk there is to follow up the talk — but already, advocates are hopeful that it means a more free and open internet.

The order, which Biden signed Friday, basically says the federal government will make curtailing monopolistic and unfair business practices a priority from here on out. The document covers a wide swath of economic issues, from international trade to agricultural workers' rights to prescription drug costs. Antitrust experts agree that it sends a clear signal to big business: The times, they are a-changin'.

"What they said today was 'we're going to use every single power within the executive branch to deal with concentration of power in powerful corporations'," says Barry Lynn, an antitrust expert and executive director of the Open Markets Institute. "This was a statement of principle, a statement of intent."

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Several sections in the order relate to powerful tech companies. This is no surprise: Breaking up big tech has been a hot topic at the FTC, in Congress, and in federal and state departments of justice for some years. But the executive order goes far beyond the scope of those investigations. It wants internet service providers to allow for more consumer choice and pricing transparency. It wants the FCC to restore net neutrality; it wants new rules governing surveillance and data collection by internet companies; it throws the president's weight behind the right to repair movement.

And, yes, it says the government will look at unfair business practices among internet giants, like privileging their own products in online marketplaces or making competition-killing mergers — which could be reversed.

But how big of an impact will this order actually have on the internet? Executive orders are directives a president makes to executive departments (like the Department of Transportation or Agriculture), independent agencies (like the FCC or the FTC), and other independent government bodies (like the Department of Justice and Congress). The tech provisions mostly fall under the purview of independent agencies and the Department of Justice, whom Biden can't force to do anything.

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Still, there's a good chance — especially on provisions like pursuing antitrust cases, and writing and enforcing net neutrality and privacy laws — that what the executive order demands will come to fruition.

Hours after the White House released the executive order fact sheet, the FTC published the response of newly installed chair Lina Khan. It says the department will be reviewing merger guidelines, and potentially revising them, if they are determined to be"overly permissive." This is in step with the order's "policy of greater scrutiny of mergers, especially by dominant internet platforms." Of particular concern: "The acquisition of nascent competitors, serial mergers, the accumulation of data, competition by 'free' products, and the effect on user privacy."

The FTC had already begun work on new data privacy rules, which would strengthen its ability for enforcement actions against tech companies that collect users' personal information. Berkeley Law professor James Dempsey says the fact that the executive order referred to data collection as surveillance was "significant."

"The president is saying, 'yes, do what you were going to do,'"Dempsey said, referring to the FTC rules on data collection. "What's notable here is the rhetorical emphasis on surveillance and the accumulation of data — which is really not the way that executive branch officials previously talked about tech company data practices."

The executive order also signals that strong action is coming down the pike on internet providers. It directs the FCC to reinstate net neutrality (the Trump-era FCC repealed it in 2017), but also outlines ways ISPs must provide more flexibility, choice, and transparency to customers.

To get this done, Biden urgently needs a new FCC chair after the departure of Trump's choice, Ajit Pai.

"To achieve many of the goals laid out in this order," says Evan Greer, the director of the digital rights organization Fight for the Future, "the Biden administration needs to nominate a fifth FCC commissioner who doesn’t have ties to the telecom industry and will stand up to the ISPs, who supports reinstating net neutrality, and who will expand broadband access for everyone."

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Once that person is confirmed, experts say it's reasonable to expect net neutrality to have more teeth than before. The Obama-era FCC policy actually had significant loopholes that favored ISPs, according to Jim Dunstan, the general counsel at technology policy organization Tech Freedom.

In the new order, "a lot of that light touch goes away," Dunstan says. "Some of the things that the executive order is talking about — prohibiting termination charges, more specificity on rates and charges — that's not light touch. That's the FCC coming in and saying, we're gonna regulate you pretty hard. So, what we may get is less light than what we had in 2015."

Another promising bellwether for tech activists is the administration's directive to prohibit product makers from controlling where customers can repair their devices — a win for the right to repair movement.

The order directs the FTC to "prohibit manufacturers from unfairly restricting consumers' ability to repair their own devices, or to access independent repair options," says Kerry Maeve Sheehan, U.S. policy lead at repair company iFixit. "As the FTC is an independent commission, the president cannot directly instruct them to pass a particular rule, but this order makes it clear that the White House sees the Right to Repair as a priority for this administration, and expects the FTC to take prompt action to address repair restrictions."

While most of the work relating to tech in the order will happen outside of the executive branch, it does establish a new council within the White House to keep tabs on and support that work. To promote competition among internet companies, there's work to be done in executive departments, federal agencies, courthouses, and legislatures across the country. But the people doing this work now have the president's big thumbs up. And maybe some renewed energy for the fights ahead.

(Editor's note: As of this writing, only the White House's Fact Sheet for the order, not the text of the order itself, was available to the public. All expert comments are referring to the fact sheet, and include the caveat that the text of the order may differ from the White House's statement.)

via Tech Republiq