As Biden aims to retain the White House against Trump, tech policy disputes become increasingly litigious

As the Nov. 5 election nears and with former President Donald Trump on the cusp of becoming the Republican nominee, President Joe Biden‘s administration is amping up its regulatory actions — especially efforts to target so-called Big Tech.

When advocates of expanding U.S. antitrust laws to rein in Big Tech failed to pass reforms through Congress when Democrats held 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 appointed law professor Lina Khan to lead the Federal Trade Commission and an ideological ally, Jonathan Kanter, to head the Department of Justice Antitrust Division.

The most recent example of the White House’s “whole of government” effort to increase scrutiny on the tech industry is the deal struck between the FTC and the DOJ to divvy up investigations into leading AI chipmaker Nvidia and software giant Microsoft’s investment in OpenAI, maker of ChatGPT. Khan recently told a Harvard Law School audience that because “the AI space … is so fast-moving,” the FTC wants to “make sure that the opportunity for competition and the potential for disruption is preserved, rather than this moment being co-opted by some of the existing dominant firms to double down on their dominance.”

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

He went on to note the irony in the Biden administration’s scrutiny of AI development: “Joe Biden ran for president promising to ‘end cancer as we know it.’ Now, Biden’s antitrust attack against AI could kill a technology that is already being used to detect and treat cancer and may one day help us find a cure.”

Biden’s Department of Justice is also opposing already well-established business practices in the tech space. A federal court in Alexandria, Virginia, recently ordered a DOJ case against Google to be a bench, instead of a jury, trial. The case, originally filed in January 2023, alleges that Google monopolized multiple open web display advertising markets involving the ad tech stack. The stack consists of technological tools connecting website publishers selling advertising inventory to prospective advertisers on the open web. The case will be heard this September in the U.S. District Court for the Eastern District of Virginia.

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

The telecommunications industry has not escaped the regulatory ire of the White House either. Biden called for a reinstatement of 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 when it voted to reinstate open-internet rules and reclassify broadband as a Title II telecom service. Challenges to the regulations will be heard first in the 6th U.S. Circuit Court of Appeals, chosen at random to hear a consolidation of more than half a dozen challenges, filed across seven circuits.

Because similar rules were repealed during the Trump administration, net neutrality remains a rare partisan split in a larger backlash against large companies and the tech industry that’s defied falling along party lines.

Repeal during Trump’s administration attracted an unprecedented amount of public interest for a telecom issue, and opponents warned the rollback would mean the “end of the internet as we know it.” However, after the repeal, no widespread blocking of sites or other service disruptions occurred. Industry groups opposing the reinstatement of net neutrality rules claim the FCC acted beyond its authority and that the shift will deter private investment in broadband infrastructure. FCC Chairwoman Jessica Rosenworcel told reporters that she has “full confidence that what we have proposed is consistent with outstanding opinions in the D.C. Circuit and the Supreme Court.”

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An indication that Biden agency leaders aim to increase regulatory actions beyond the tech space, the DOJ filed suit against Live Nation Entertainment’s Ticketmaster last month. The complaint accuses the company of being a monopolist and of other “unlawful conduct that thwarts competition in markets across the live entertainment industry.” But critics assert that the case is a politically motivated attempt to appeal to younger voters in the wake of problems with the website meltdown around ticket sales for Taylor Swift’s The Eras Tour.

What influence these crackdowns on technology industries and an expanded vigor of antitrust enforcement will have on the presidential election remains to be seen. An April 2024 poll from left-leaning industry group Chamber of Progress found that 77% of voters in battleground states wanted the next president to “focus on expanding technology jobs and services, over focusing on regulating Amazon, Google, and Apple.”