President-elect Donald Trump’s views on technology and tech policy were not prominent campaign features on his contentious path to the White House. However, his repeated calls to dismantle the Washington, D.C., establishment provide some clues to how his first 100 days in the White House will impact the nation’s tech infrastructure and its approach to data privacy for years to come.
Neutering Net neutrality
Trump’s first major shift in tech policy will likely target the U.S. Federal Communications Commission (FCC), where he may seek to reverse key policies from Obama’s presidency that affect "Net neutrality."
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Democrats and Republicans agree in principal to “Net neutrality,” the idea that Internet service providers (ISPs) should not favor or block different Web sites or services delivered online. Democrats in general want to prohibit paid prioritization or blocking altogether, whereas Republicans are against an outright ban.
In 2015, the FCC, headed by Democrat Chairman Tom Wheeler, voted to regulate broadband Internet as it would any public utility (rather than classify it as an "information service" and thus not subject to regulation), enabling it to enforce Net neutrality.
Trump himself has said little publicly about the FCC or telecommunication policy outside of a November 2014 tweet in which he referred to the FCC’s attempts to reclassify broadband as a utility service as “another top down power grab” of the Obama administration.
Presumably, the president-elect will move to reverse that policy by first replacing Wheeler and then calling on a Republican-led FCC to loosen regulations governing Internet broadband service and data.
“The FCC with an incoming Trump administration is going to put this issue on the agenda very quickly and begin the regulatory process to classify broadband once again as an information service,” says Rick Boucher, a former U.S. congressman (D-Va.) for 28 years who chaired the House Energy and Commerce Committee’s Subcommittee on Communications and the Internet. “In the telecom world, it’s probably as big an issue as there is.”
The 2015 FCC ruling reclassified broadband from a lightly regulated information service governed by Title I of the Telecommunications Act of 1996 to a more heavily regulated Title II telecommunications service. The ruling followed years of debate over the best way to ensure that ISPs do not favor one type of online content or service over another.
In practice, the FCC has had little need to enforce Net neutrality, one of the few documented cases coming in 2005 when a local telecom blocked its customers from using Skype. Although Net neutrality was not technically a regulation at the time, then-Chairman Michael Powell opened an investigation into the telecom’s actions because they violated network neutrality in principle. AT&T recently ran afoul of the FCC, which urged the carrier not to allow customers of its cellular network to use the company's new Internet TV service—called DirecTV Now—without a data cap. Although technically not a Net neutrality violation, AT&T can leverage its ownership of DirecTV Now by applying data usage policies toward competing services such as Sony or Dish Network.
Republicans' position is that content providers and ISPs will not broadly offer prioritized services because ultimately it would be bad for business, Boucher says. “In our very competitive broadband market, ISPs will never block, degrade or discriminate via pricing because the consumer backlash and media assaults would be overwhelming, instantaneous and not survivable,” says Bruce Mehlman, a former assistant secretary of commerce for tech policy during George W. Bush’s administration.
Even nonpartisan think tanks such as the Information Technology & Innovation Foundation (ITIF) say the FCC overstepped its authority in changing broadband regulations. “The Wheeler extreme position on Net neutrality was bad for broadband innovation and ultimately consumers,” says ITIF President Robert Atkinson. “He had a chance to implement a more balanced approach that would protect consumers against abuse but enable network innovation and he chose to mollify the [online political activists and campaigners known as] ‘netroots,’ rather than pursue good policy. A Trump-appointed FCC chair has a chance to fix that mistake."
Jeff Eisenach, managing director of National Economic Research Associates, Inc. and a member of the transition teams for former Republican presidents Ronald Reagan and George W. Bush, is one of the frequent names being floated to succeed Wheeler. Another candidate to lead the FCC could be Mark Jamison, who is working with Eisenach as part of Trump’s FCC transition team. Jamison is director of Warrington College of Business’s Public Utility Research Center at the University of Florida and a former lobbyist for telecom provider Sprint.
Once Trump installs a Republican FCC chair, the agency's GOP commissioners Ajit Pai and Michael O’Rielly will have the support they need to end what they have viewed as the FCC’s overreach into the telecom market. “[Wheeler’s] Net neutrality regulations were ultimately passed without Republican support either at the FCC or in Congress,” making them easy targets for the incoming administration, Mehlman says.
Self-regulating privacy and intelligence
One immediate impact of reclassifying broadband as an information service would be how ISPs handle customer data. In rules released in October, the FCC established practices that allow broadband customers "increased choice, transparency, and security over their personal data." These new rules would automatically be nullified, Boucher says, if the 2015 FCC ruling is thrown out. Privacy oversight for ISPs would revert to the U.S. Federal Trade Commission (FTC). Prior to the FCC’s reclassification the FTC for years used Section 5 of the Federal Trade Commission Act, which prohibits ‘‘unfair or deceptive acts or practices in or affecting commerce,” to regulate privacy issues for all businesses—including ISPs—operating on the Internet.
Under this scenario, the federal government would step aside and rely on trade groups in different industries to define what is unfair or deceptive and regulate the behavior of their members. Examples of such self-regulating organizations are the American Medical Association for health care professionals and the National Association of Realtors for the real estate industry. “The FTC effectively says that if you sign up to join the organization you are agreeing to respect its principles, and if you fail to do so it’s an unfair trade practice,” Boucher says. These organizations typically address infractions through fines or cease-and-desist orders. If neither the organizations nor the states in which they operate have rules governing, for example, how customers’ data are shared or sold then the FTC would not automatically step in.
The Trump campaign has said little about privacy policy but some of the president-elect’s early appointments offer some hints as to where he stands. “The most significant tech policy signals to watch over the next three months are people,” Mehlman says. “People are policy and the leaders of cabinet and independent agencies will speak volumes about the direction of tech policy in 2017.”
Trump’s choice to lead the Central Intelligence Agency is Rep. Mike Pompeo (R–Kan.), a member of the House Intelligence Committee and a former Army officer who has called for a return to bulk collection of calling records. Congress last year halted bulk data collection by passing the USA Freedom Act. This followed former National Security Agency (NSA) contractor and whistleblower Edward Snowden’s 2013 revelations about the extent of that agency’s snooping. Trump met with NSA Director Adm. Mike Rogers in mid November to discuss the job of director of national intelligence, a cabinet-level position overseeing 16 intelligence agencies. Rogers has come under fire in the Obama administration for, among other things, his handling of the growth of the Islamic State in Syria and Iraq.
In addition to grilling Pompeo and possibly Rogers in confirmation hearings, Congress will make several decisions next year that dictate how Trump’s intelligence infrastructure operates. Most significantly, Section 702 of the Foreign Intelligence Surveillance Act (FISA) will expire at the end of 2017 and along with it the federal government’s ability to spy on the communications of foreigners outside of the U.S. The Trump administration will likely seek to renew Section 702. Snowden’s leaked documents initially upset some European governments when they learned the scope of NSA data collection in their countries but more recent terrorist attacks in Belgium, Germany and elsewhere that might have been foiled by more successful surveillance have quieted some of those criticisms, Mehlman says.
“[Pompeo] wants FISA amendments renewed and opposed the USA Freedom Act,” says ITIF Vice President Daniel Castro. “Rogers hasn’t been vocal on the FISA renewal one way or the other.” Still, it is unclear exactly how Pompeo’s and Rogers’s views will show up in Trump’s policies. “After all, [Trump] is pushing to reduce regulations, not increase them,” Castro adds. Clearer are Trump’s plans to bolster cybersecurity. “Trump announced that in his first 100 days in office he will call on the Department of Defense and Joint Chiefs to develop a comprehensive plan to defend critical infrastructure against cyberattacks.” But any early action will not be likely, says Boucher, without a clear way forward.
Regardless of how the Trump administration’s telecom strategies and policies play out, the president-elect appears poised to deliver on the shake-up he promised.