118th Congress Means New Landscape for Devs

On the heels of the 2022 midterm elections, it’s time to take stock of what the political landscape will look like over the next two years. Devs, like a lot of us, just want policymakers to get out of the way. But the reality remains that in order to navigate the new political landscape, you need to know who the power players are. Republicans are well on their way to winning the House of Representatives, albeit with the slimmest of majorities. While it’s still not entirely clear who will control the Senate (again, with the slimmest of majorities), Democrats appear to be in the driver’s seat for the few outstanding races that will determine control of the upper chamber. A divided Congress may lead you to believe nothing will get done, a closer look tells a different story. We anticipate Congress to be very active on many of the issues affecting devs. 

Namely, Congress is likely to engage on content moderation, Big Tech antitrust, security, and privacy. There will be no shortage of activity that we’ll be paying close attention to.  

Content Moderation. Republicans have been crystal clear in their hope to curb perceived censorship of conservative voices online. One of the loudest voices in this arena is Rep. Jim Jordan (R-OH), who is likely to win the chairmanship on the House Judiciary Committee (which has jurisdiction over a broad swath of the tech ecosystem, including free speech and liability issues). We expect the House Judiciary Committee to hold a number of hearings involving major online platforms and their alleged role in censoring conversative voices. These hearings will be combative and will not benefit the dev ecosystem and broader tech industry. 

On the other end of the spectrum, expect Democrats and Republicans to work together to explore avenues to curb hate speech and child exploitation online. House Republicans ran on the idea that parents should have more tools at their disposal to keep their kids safe online. A bipartisan group of Senators advanced the Kids Online Safety Act (S. 3663) out of committee in July with bipartisan support. The legislation would require that platforms act in the best interest of a minor using their service, along with a prohibition on advertising illegal goods to minors. Given that there are early signs of agreement, expect Congress to act in some capacity.

Devs should monitor both approaches. While the conservative bias attacks will be targeted at large platforms, there is almost certain to be a trickle-down effect that will impact everyone. On the other hand, new laws to stop online trolls and child exploitation will require some extra work by devs to ensure they are not liable for the spread of heinous activities. The Supreme Court is also slated to consider cases related to both areas this term. 

Big Tech Antitrust. Bipartisan lawmakers in both chambers have expressed an interest in breaking up Big Tech. They had hoped to pass sweeping legislation that would weaken online security and turn the app store ecosystem on its head in the 117th Congress. This legislation would have impacted everyone from the largest online platforms down to the smallest app players in the marketplace. By all accounts, GOP leaders don’t have an interest in advancing the American Choice and Innovation Online Act (H.R. 3816), which effectively puts the bill on ice. You can read our analysis HERE for an explanation of how what lawmakers promise and what the legislation delivers are wildly out of sync.

Unfortunately, there’s more legislation that they may be willing to consider if they want to take another swing at the issue. The Open App Markets Act (S. 2710), its authors would have you believe, is a scaled down competition bill, but the reality remains that if passed, it would have detrimental effects on the app industry. This bill, like its cousin H.R. 3816, would turn the app store ecosystem on its head, impacting developers of all stripes and sizes. 

Competition issues cut across party lines and create strange political bedfellows. Members on both sides of the aisle have expressed more than a passing interest in competition reform broadly, so even if H.R. 3816 is on life support in the House, don’t be surprised to see S. 2710 gain some traction. 

Security. Republicans have long described themselves as the party of law and order, and now that they control the levers of power in the House, expect that to bleed into tech. While there’s no such thing as an encryption back door just for the good guys, lawmakers have long sought to compel devs to create these access points in the name of security. This desire has existed since the dawn of the internet age. Devs, consumers, academics, and others have been steadfast in explaining to law enforcement and policymakers that end-to-end encryption is important to not only protect the privacy of consumers, but it also creates consumer trust and safety. This trust is critical for small devs who are just setting out to create a product and scale. 

We remain opposed to any measures that will weaken encryption. Any backdoor, even the most well-intentioned, is an unacceptable security risk. 

Privacy. In July, the House Energy and Commerce Committee passed the American Data Privacy and Protection Act (H.R. 8152) with broad bipartisan support. The bill is the latest attempt to protect consumer privacy without sacrificing innovation. Unfortunately, it was never voted on by the entire House because Speaker Nancy Pelosi (D-CA) opposes its preemption provision. The Speaker believes that the bill in the House is weaker than the California law, and therefore should not preempt it.  One other player worth watching is Senate Commerce Committee Chair Maria Cantwell (D-WA) who has been lukewarm to the idea, indicating that the House legislation lacks enforcement mechanisms. The DA is generally supportive of this legislation, and a Republican-led House may breathe new life into the issue. 

H.R. 8152 does have a couple issues that are concerning, namely who can enforce it and whether or not the bill actually preempts the entire patchwork of state laws. However, it is a step in the right direction, and could be a net positive for devs reducing their liability along with the number of privacy laws they have to comply with. Devs should pay close attention to whether or not the legislation is considered in the House and Senate as it would fundamentally alter how they deploy their products.

The next two years could be turbulent for devs. Techlash has been simmering for some time, and it may finally boil over. Expect committees in both chambers to hold many hearings on the industry –some of which may be very uncomfortable. Any legislation that advances is likely to be a mixed bag. Some legislation will cause intense heartburn, while others less so. Either way, devs should be prepared to make additional investments in their people and products to comply with any new laws and regulations. The Developers Alliance will work hard over the next two years to educate policymakers on the products that are making our lives healthier, more prosperous, and more convenient.

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By Geoff Lane

Policy Counsel & Head of US Policy Geoff Lane serves as the Developer Alliance’s head of U.S. policy. In this role he oversees the organization’s federal legislative and regulatory agenda as well as state-level efforts. Prior to joining the Developers Alliance in 2022, Geoff worked with senior Democratic leadership in the House of Representatives. Since his time on Capitol Hill, he has held senior roles at various technology trade associations (including a previous stint at the Developers Alliance). At each stop he led efforts at the intersection of innovation and policy. He has worked on critical policy issues including privacy, encryption, patent reform, workforce development, corporate tax, tax nexus, and research and development. Geoff holds a B.A. from Miami University in Oxford, Ohio. When he is not working, you can find him booing all of his favorite Philadelphia sports teams. Geoff is based in Washington, D.C.

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