When Joe Biden Jr. is sworn in as the 46th president of the United States on January 20, 2021, many will wonder how the next president of the United States will handle the rise of Big Tech and data privacy. This report examines Joe Biden and his incoming cabinet’s stances on major pieces of privacy legislation to predict what America’s future privacy landscape will look like. It consists of three parts:
An infographic summarizing our main findings Our own original research on the attitudes of Americans on privacy and Joe Biden’s presidency, and An analysis of Joe Biden’s political record on matters of privacy as well as an analysis of known relationships that might affect his stance on privacy issues
Infographic: Joe Biden and the topic of privacy
In the sections below, we’ll dive into more detail on how Americans view Joe Biden’s approach to privacy topics. We’ll also explore Joe Biden’s political record on privacy-related matters.
Original Research: Insights From a Survey of 1,000 Americans from the Two Major Political Parties
How do Americans feel about privacy in 2021? And how do they feel about privacy in the context of the Joe Biden presidency? We wanted to find out, so we asked them. We surveyed 1,000 Americans, split evenly between republicans and democrats, and asked them exactly what they thought.
Summary of Our Findings
Among issues that could be considered political — especially given recent privacy hearings on the floors of the U.S. Congress — privacy is not nearly as polarized as many others. Based on our survey of 1,000 Americans, we concluded the following:
Almost all Americans care about their online privacy regardless of political affiliation Almost all Americans expect Joe Biden to support legislation that protects their online privacy regardless of political affiliation Some Americans are willing to accept reduced privacy protections in national security situations, although this number was roughly the same for both major political parties Older Americans are slightly more willing to accept reduced privacy protections in national security situations
Methodology
We surveyed 1,000 Americans from the two major political parties — 500 people identifying as republicans and 500 people identifying as democrats. We cleaned the data to check for inconsistencies in reporting (e.g. inconsistencies in the ways respondents reported political affiliation) and to filter out those who weren’t adequately reading survey questions. After cleaning the data, we ended up with 947 quality, completed surveys. Of those, 482 respondents identified as democrats, and 465 identified as republicans. Respondents were asked to respond on a disagree-agree spectrum to questions about privacy in general as well as questions about Joe Biden and privacy. All questions included “neutral” as a possible response, and, where applicable, an “I don’t know enough to answer this question” response. In the insights below, we grouped responses into sentiments for the sake of brevity and simplicity. For example, when asked if they valued their online privacy, respondents who answered “somewhat agree,” “agree,” or “strongly agree” would fall into a “value online privacy” sentiment. The original data can be viewed here.
Limitations of Our Research
While we think our research yields interesting insights, it has its limitations. We encourage readers to consider these limitations when reading the data. First, the sample size includes 947 quality respondents. The data shows strong trends for most answers, but some questions (e.g. older democrats who would be in favor of legislation that lowers privacy protections in the name of national security) would benefit from a larger sample size. Second, the survey does not include people who identify as independents or who are affiliated with other political parties, nor is it a demographically representative sample of the country as a whole. Running the same survey with a truly representative sample would likely yield slightly more accurate results, but we don’t think it would affect the overall outcome of the study.
Insights from both major political parties
97.8% of Americans surveyed said they valued their online privacy. 24.8% of respondents specifically approved of Joe Biden’s track record on privacy. 20.2% said they specifically disapproved. 17.7% said they neither approved nor disapproved (selecting “neutral”). And 37.4% said they didn’t have enough information to either approve or disapprove. 87.3% of Americans surveyed said they want Joe Biden to support legislation that protects their online privacy. 19.5% of Americans surveyed said they were okay with legislation that reduces privacy protections in the name of national security; however, enthusiastic responses (“strongly agree”) accounted for only 1.9%, suggesting possible apprehension. 24.5% of older respondents (ages 55+) said they were okay with legislation that reduces privacy protections in the name of national security.
Insights from Democrats
97.7% of democrat respondents said they valued their online privacy. 37.1% of democrat respondents specifically approved of Joe Biden’s track record on privacy. Only 3.2% said they disapproved. 15.8% said they were neither approved nor disapproved (selecting “neutral”). And 43.5% said they didn’t know enough to answer the question. 95.9% of democrat respondents said they wanted Joe Biden to support legislation that protects their online privacy. 19% of democrat respondents said they would be okay with legislation that reduces their online privacy protections in the name of national security. Although the sample size was significantly smaller than that of republican respondents (just 22 respondents), 39% of older democrat respondents (ages 55+) said they would be okay with this type of legislation.
Insights from Republicans
97.9% of republican respondents said they valued their online privacy. 10.8% of republican respondents said they specifically approved of Joe Biden’s track record on privacy. 37% said they specifically disapproved. 31% said they didn’t know enough to answer the question. 84.7% of republican respondents said they want Joe Biden to support legislation that protects their online privacy. 19.2% of republican respondents reported that they were okay with legislation that would reduce their online privacy protections in the name of national security. Only slightly more older republicans (ages 55+) — 20% — reported that they were okay with this kind of legislation.
An Analysis of Joe Biden’s Voting & Political Record on Privacy Matters
Liability Protections – Section 230
Section 230 of the Communications Decency Act has been a fiercely debated topic in Washington for decades. Biden has repeated his desire to repeal the law several times over the course of his presidential campaign, and it’s expected that he will put this issue high on his agenda when he assumes office.
What is it?
As part of the 1996 Communications Decency Act, Section 230 protects technology companies and social media platforms from liability for content that their users post on their platforms.
Biden’s Stance
In an interview with The New York Times, former Vice President Biden stated that “… Section 230 should be revoked.” When asked to elaborate on his dislike of Facebook. He also stated that the social media giant “is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy.” [NYT] Social media platforms, in particular, are being singled out by Democrats and Republicans alike for the protection they receive from Section 230. Unless tech giants like Facebook and Twitter police hateful content on their platforms, it’s likely that the incoming Biden administration will seek to make changes to this law.
FISA Amendments Act of 2007
The Foreign Intelligence Amendments Act of 2007 is one of the most controversial Amendments made during the Bush administration. Joe Biden opposed the passing of this Amendment, but it was signed into effect with a 68% majority.
What is it?
This Bill aims to expand the Foreign Intelligence Surveillance Act, which allows electronic surveillance without a court order and grants immunity to electronic communications surveillance providers under certain national security conditions.
Biden’s Stance
As Senator, Joe Biden voted “Nay” on this expansion in 2008. Biden’s opposition to this Bill perhaps reflects his belief in a fair judicial process, where surveillance activities should be approved by a judge before they are executed.
Senate Amendment 3907 — Striking Telecommunications Companies’ Civil Immunity for Surveillance – National Key Vote
Senate Amendment 3907 was a key vote against President Bush’s illegal NSA wiretapping program. Some telecommunications companies allegedly cooperated with intelligence agencies to collect data on American citizens, and this vote made them liable for their actions.
What is it?
This Amendment struck title II from the FISA Act and removed immunity provisions for any communications providers or telecommunications companies that have provided electronic surveillance services.
Biden’s Stance
Senator Biden was a co-sponsor of this Amendment in 2008 and voted “Yea” along with other prominent Democrats such as Hillary Clinton, Chris Dodd, and Barack Obama. This Amendment was ultimately rejected in the Senate. Biden’s ‘Yea’ vote was a clear repudiation of President Bush’s post 9/11 anti-terrorism policies that were seen to be violations of citizens’ privacy. It cemented his pro-privacy stance just before he assumed office as Vice President under President Obama.
S1927 — Foreign Intelligence Acquisition
S1927 was another Bill passed during the Bush Administration to increase the U.S. government’s surveillance capabilities against in-country and foreign terrorist suspects.
What is it?
This Bill gave the Director of National Intelligence and the Attorney General of the United States the power to authorize the monitoring of foreign electronic communications routed through the country.
Biden’s Stance
Senator Joe Biden voted “Nay” on this legislative piece in 2007. Biden voted against this Bill as it gave additional powers to the Bush administration to conduct surveillance with little to no need for a court order.
HR 3199 — Patriot Act Reauthorization
The 2005 HR 3199 Patriot Act Reauthorization was one of the few Bills Biden voted for during the Bush administration. At the time, the American Civil Liberties Union called on Members of Congress to vote against the Bill over concerns that it could increase federal death penalties and subject innocent people to unnecessary federal scrutiny.
What is it?
This Bill granted the Federal Bureau of Investigation (FBI) a four-year extension from 2005 to 2009 to conduct “roving wiretaps” to access certain business records under the Foreign Intelligence Surveillance Act of 1978 (FISA). Other Highlights [votesmart.org]
The Bill also allowed federal officers executing a search warrant to wait up to 30 days before notifying the suspect of the search. Any further extensions require approval by a judge (Sec. 114). Under this Bill, Internet service providers are allowed to disclose subscriber information and the contents of their communications to a government entity if they believe there is “immediate danger of death or serious physical injury” (Sec. 107).
Biden’s Stance
Senator Joe Biden voted “Yea” on this legislative piece in 2006. It’s believed that Biden voted for this piece of legislation to allow the FBI to conduct wiretaps on suspected terrorists like they usually would to investigate the mafia.
Senate Amendment 3263 — Phone Recording
Biden’s vote on this Amendment is one of his earliest shows of support for greater privacy in America. If the legislation had been passed, it would have made secretly taped conversations illegal except for when a person might be under threat of harassment, physical harm, or intimidation.
What is it?
The Amendment, introduced in 1998, would have made it illegal to record or intercept any telephone communications.
Biden’s Stance
Senator Biden voted “Yea” on this Amendment, which was ultimately rejected at the time. Biden’s support for this legislation is evidence of his support for greater privacy. Unfortunately, the Amendment was rejected by Republicans in the Senate.
Senate Amendment 1215 — Anti-Terrorism Wiretaps
Senate Amendment 1215 is the first pro-surveillance legislation that Biden voted for; the second being the 2005 Patriot Act Reauthorization.
What is it?
This Amendment allowed law enforcement authorities to utilize multipoint wiretaps (not limited to a specific telephone line) during anti-terrorism operations by removing judicial authorizations that were previously required for each single wiretap point.
Biden’s Stance
Senator Biden voted “Yea” on this Amendment, which was adopted by the Senate in 1995. Biden’s “Yea” vote on this Amendment in 1995 demonstrates his pragmatic approach to surveillance. It’s likely that he voted for this legislation to allow law enforcement agencies to respond quickly to criminal activities without needing to wait for judicial authorization.
Fair and Accurate Credit Transactions Act (FACTA)
FACTA was introduced in response to increasing numbers of data breaches and phishing attacks in the U.S. in the early 2000s. The law was designed to protect all Americans from identity theft.
What is it?
This law requires financial institutions and creditors to maintain accurate written summaries of their customers’ credit histories to protect them from identity theft.
Biden’s Stance
Senator Biden voted “Yea” on this Bill in 2003, which went on to become law. FACTA continues to be an important piece of legislation that was passed with overwhelming bipartisan support. Biden’s support for this law shows that he cares about the financial security and privacy of all Americans.
Net Neutrality and the Internet Preservation Act
Net Neutrality is expected to be high on Biden’s agenda. The principle has been a Democratic priority for over a decade as it ensures that all Americans can access the Internet equally and freely, without any discrimination from an Internet Service Provider (ISP).
What is it?
The Act states that there shall be no discrimination against lawful content. Net Neutrality ensures that Internet users have the right to access lawful websites of their choice and post lawful content, free of discrimination or degradation by network providers. Network providers cannot block or slow down lawful content they dislike. The central premise of this Act is that a vibrant marketplace of ideas on the Internet cannot function with corporate censors. The Act also stipulates that all citizens receive equal Internet access at an equal price. Under Net Neutrality, network providers cannot give preferential treatment to their own services at the expense of competing sites that consumers may want to use. In many markets, Internet access is only available through one or two providers. Equal access at an equal price means that network providers cannot abuse their monopoly by barring access, providing slower access, or charging higher premiums to popular services competing against theirs. Proponents of Net Neutrality believe that the free market, not corporate monopolies, must be allowed to decide Internet winners and losers. The Act allows consumers to choose network equipment. Since 1968, Net Neutrality has allowed consumers to choose the equipment they want, or make it themselves, and attach it to any network. In 1996, Congress reaffirmed this right by directing the FCC to adopt regulations permitting consumers to have the final choice of cable boxes used to convert television signals. Net Neutrality prevents network providers from eliminating competing equipment by making it incompatible with their gateway. In the process, it ensures that equipment choice remains in the hands of Internet users, where it rightfully belongs. [UCLA]
Biden’s Stance
Currently, Biden’s VP— Kamala Harris, and key members of his transition team, have all stated support for Net Neutrality, which could mean positive support for the legislation. However, Biden’s voting history in the Senate reveals a somewhat neutral stance. With regards to the 2007 Internet Preservation Act, Biden did not co-sponsor or even support the Bill, while other prominent Democrats, such as Senator Obama and Senator Clinton, showed strong support. Despite Biden’s previously lukewarm stance towards Net Neutrality, there are positive signs that his administration will restore Net Neutrality after the Trump administration deregulated the broadband industry. Biden has appointed Mignon Clyburn, a former acting chair of the Federal Communications Committee (FCC), the nation’s communications regulator, as a key member of his transitions team. She worked at the FCC for 9 years and is known to be a strong supporter of consumer rights, affordable high speed internet access, and net neutrality. Biden has also hinted that he will try to install a Democrat majority in the FCC.
An Analysis of Relationships that May Affect Joe Biden’s Stance on Privacy Issues
In addition to Joe Biden’s voting record in the Senate, other factors such as his relationships with technology companies and Vice President Kamala Harris’ views on privacy could shed more light on what a Biden-Harris administration would do for privacy.
Biden’s Vice President
Kamala Harris
Kamala Harris is a former Attorney General for California who will be inaugurated as Vice President in January 2021. She is viewed by many experts to be a staunch supporter of privacy, especially internet and mobile privacy issues. Actions and statements As Vice President, Harris will likely pursue positive developments for technology in America. Her long experience working with Silicon Valley companies puts her in a special position to explore the role of Big Tech in America’s future while also protecting the privacy of all Americans against corporate and foreign interests.
Staff and Close Relationships
Joe Biden’s close relationships with technology companies and lobbyists has raised questions about his independence from corporate interests. Apple, Google, and Comcast are some companies that have supported Biden during his campaign for presidency.
Cynthia Hogan and Apple
Cynthia Hogan is a former senior director of government affairs at Apple who joined Joe Biden’s vice presidential vetting committee in April 2020. At Apple, Hogan lobbied the Senate, Congress, and the Treasury Department on corporate tax reform and privacy regulations. She defended Apple’s decision to remove virtual private network apps from its China app store in 2017, arguing that the decision was made to comply with Chinese law. She is also seen by many commentators to be skeptical of antitrust actions against large technology companies. Her past record as a lobbyist has raised concerns that Hogan might make the Biden administration lenient towards Big Tech. Apple’s views on privacy:
The company has been known to promote privacy through its policies, hardware, and proprietary operating systems, essentially putting the control of data into the hands of consumers. Apple versus The FBI — In 2015, the FBI tried to use a court order to compel Apple to decrypt an iPhone belonging to a shooter involved in the San Bernardino attack. Apple refused to assist the FBI in accessing the contents of the phone, citing the privacy rights of the user.
Issues Apple has lobbied for:
Trade: cyber-security, encryption, privacy, issues related to standard essential patents and patent litigation, supply chain, competition issues related to digital services, issues related to export control regulations, 5G networks, S.2 Fair Trade with China Enforcement Act. Online privacy: education privacy, cybersecurity, encryption, financial technology, monitoring of user activity Data sharing: international data sharing issues, electronic health records, user privacy,
Biden’s Relationship With Internet Companies
Biden did not shy away from funding given to him by internet companies during his presidential campaign. Unlike President Obama who tried to distance himself from lobbyists, Biden has relied on this funding, which may reflect his more traditional political leanings. Some of Biden’s relationships with lobbyists and internet companies include:
In 2019, David Cohen, the chief lobbyist of Comcast, a telecommunications conglomerate that owns NBC, hosted a fundraiser for Joe Biden on the day he announced his candidacy for the presidency, raising concerns that corporate interests could sway the Biden administration. Biden has raised over $25 million from internet companies, according to the Center for Responsive Politics (CRP). Biden’s cozy relationship with internet companies could influence his administration’s stance on issues ranging from surveillance to FISA litigation to liability protections.
California’s Consumer Privacy Rights Act
In November 2020, California passed its landmark Consumer Privacy Rights Act (CPRA), the first of its kind in the United States. A successor to the California Consumer Protection Act, the CPRA paves the way for future privacy-focused federal legislation to be enacted in the near future.
Summary of California’s CPRA
CPRA grants California consumers the rights to:
Know what types of personal information businesses are collecting about them and whether the businesses are disclosing that information to third parties. Know the businesses’ purposes for collecting and using their personal information, and how it is processed. Opt out of the sale of their personal information. Request businesses to delete their personal information. Not be subject to discrimination by businesses for exercising their privacy rights.
California’s CPRA may have just been adopted in November 2020, but it has set a high standard for what privacy rights for every American could be.
Significant Campaign Contributors
In addition to Comcast, Joe Biden has received campaign funding from Alphabet Inc, Google’s parent company.
Alphabet Inc (Google)
Alphabet Inc. has contributed over $6.4 million to Joe Biden’s recent campaign and was one of his campaign’s top 20 contributors. Google has a history of contributing almost exclusively (94.5%) to the Democratic Party. Google and privacy
With a business model that revolves around effective ads and marketing, personal data has become a critical asset for Google. Currently, Google’s personal data collection practices affect more than 2 billion users. Recent regulations, such as California’s new privacy act, and the likelihood of new federal regulations have prompted Google to take a renewed interest in persuading policy at the highest levels. Google has a history of violating consumer privacy through their ad and media platforms — In 2019, Youtube, a subsidiary of Google, was fined $170 million by the Federal Trade Commission for violating the Children’s Online Privacy Protection Act (COPPA). The complaint filed against the company claimed that Youtube collected personal information via persistent identifiers, specifically from viewers of child-focused channels and media. This was done without notifying the parents of the children and receiving prior consent.
Google’s campaign donation to Joe Biden has raised concerns that executives at the company might influence the incoming president to take a softer stance on Big Tech. There have also been reports that employees of Facebook, Apple, Microsoft, and other Silicon Valley giants have given donations to Biden’s presidential campaign.
The Democratic Party
During the past 2 years, the Democratic Party has introduced several new bills and proposals that aim to protect the privacy of American consumers.
In November 2019, Democratic Senators introduced the Consumer Online Privacy Act — a legislation that gave consumers and individuals control over their data, imposed new rules and obligations on how data is processed, and expanded the scope of the Federal Trade Commission’s (FTC) role over digital privacy. Democratic Senators in 2018 introduced the Customer Online Notification for Stopping Edge-provider Network Transgressions or the CONSENT Act. This legislation directs the FTC to produce and “establish privacy protections for customers of online edge providers.” This includes notifying customers about sensitive information that the edge provider collects and how the information will be used and shared, along with other consent and opt-in requirements. The Data Care Act of 2018 was introduced by Democratic Senators to provide the FTC with authority to establish rules and impose duties of care, loyalty, and confidentiality on online service providers regarding the security of its users’ data.
Together with the Internet Preservation Act, these pro-privacy Acts could usher in a new era of increased privacy for all consumers that’s protected by federal legislation. These Acts could be the best defense against increasing intrusions into the private lives of Americans as Big Tech companies continue to grow unabated during the pandemic. One of the foremost questions when thinking about a the state of privacy under a Biden presidency, of course, is: how might privacy change from as the U.S. transitions from current administration to the incoming one. Here’s a quick summary of the comparison of the Trump administration’s stance on privacy issues vs what we know of Biden’s stances.
Where They Agree
Section 230
President Trump has pushed and called for the elimination of Section 230 right inline with the thinking of President Elect Biden. Trump has also gone as far as vetoing a defense bill due to the refusal of Congress to include a provision that repeals Section 230.
FISA — Section 702
Both Biden & Trump have shown a history of disapproval of the FISA law, expansions, and renewals. Trump has vocalized how he thinks the law has been abused and specifically utilized by his opponents to produce the infamous “Dossier” that pushed an investigation against Trump. In 2018 Trump renewed Section 702, but stated that “This is not the same law that was wrongly abused during the election”
Where They Disagree
Net Neutrality
In 2017, President Trump’s FCC voted to repeal the rules that make up Net Neutrality. Trump has continuously stated his opposition to Net Neutrality and that its repeal is a way to stop the government from — “micromanaging the internet.”
Europe & GDPR
President elect Biden has shown his support for how Europe is handling privacy and data saying that “…we should be setting standards not unlike the Europeans are doing relative to privacy.” President Trump and his administration has shown a different approach. In an interview with Politico, U.S. Deputy Assistant Secretary of State for Cyber Rob Strayer stated a rising concern with GDPR and their counterparts in Brussels and EU capitals as a “top diplomatic issue.”
Other Issues
Consumer Privacy & Encryption
When it comes to the issue that arose with Apple, their phone & data encryption and the FBI’s request for them to unlock and access particular that data, Trump, as a presidential candidate criticized the company for refusal to unlock phones used by “criminals.” Trump’s Attorney General Bill Barr as also stated regarding the issue with Apple & the FBI — “There is no reason why companies like Apple cannot design their consumer products and apps to allow for court-authorized access by law enforcement while maintaining very high standards of data security.”
Biden’s voting history, his recent comments on privacy legislation, and the policy opinions of his campaign staff and VP, indicate that his administration would likely support legislation that—
Limits the power and scope of tech giants. Bolsters antitrust laws. Ensures consumer privacy and data protection. Supports open internet policies such as Net Neutrality. Allows limited intrusions of privacy on issues pertaining to national security. Could be influenced by key personnel and corporate lobbyists from tech giants such as Apple & Alphabet Inc.
This is good news for anyone who feels concerned by the largely unregulated rise of Big Tech. Vice President-elect Harris’ extensive experience with Silicon Valley companies will help her navigate the complex maze of antitrust actions against the tech giants and promote better privacy for all Americans. At the same time, President-elect Biden’s long history of voting for pro-privacy legislation should be reassuring to most people that he is weary of extrajudicial intelligence activities against ordinary citizens. There are, of course, concerns that both Biden and Harris have close relationships with Silicon Valley lobbyists and executives. How these relationships might affect the future of privacy in America will be seen after the Biden administration takes office in January 2021.
Sources
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