Getting antitrust, data privacy and content liability legislation across the finish line will be challenging regardless of who wins control of the House and Senate following the midterm elections.
Even if Democrats maintain control over Congress, it's not likely that the policymakers would be able to advance major bills on controversial topics anytime soon. Over the last two years, both sides of the aisle have struggled with agreeing on how to tackle the power of big tech companies such as Google, Apple, Amazon and Meta, causing multiple bills addressing various issues to stall in Congress. This deadlock isn't expected to improve under possible Republican control.
Should Congress remain stalled on significant tech issues for the next two years, more states might act to fill this legislative vacuum. Five states -- California, Colorado, Connecticut, Utah and Virginia -- have already adopted comprehensive consumer privacy laws, while Texas and Florida have adopted controversial social media laws on content moderation.
As of Thursday, control over the House and Senate remained up in the air as vote counts continued and the Georgia Senate race headed to a runoff, where Democratic candidate Sen. Raphael Warnock will face Republican candidate Herschel Walker in a new vote in four weeks. According to projections, Democrats are expected to maintain control of the Senate, while losing the House to Republicans.
Antitrust reform efforts to tackle competition issues began in earnest last year with the introduction of six antitrust bills, with most aiming to reshape core antitrust laws and break up big tech companies. Meanwhile, multiple bills seek to reshape Section 230 of the Communications Decency Act, which protects companies from liability for the content shared on their platforms.
Policymakers acted on federal data privacy legislation this year, advancing the American Data Privacy and Protection Act (ADPPA) further than any other federal privacy legislation that has been introduced. The bill passed a House committee vote in July, but has yet to progress further.
The lack of agreement between Republicans and Democrats is why experts believe most of these measures to reform antitrust and Section 230 law, as well as introduce new federal data privacy legislation, won't come to fruition anytime soon regardless of who wins control of Congress.
The lack of strong bipartisan support for antitrust reform bills has been a significant struggle for Democrats. Though bipartisan support exists for some of the bills, it hasn't been enough to advance them to a final vote, said Dirk Auer, director of competition policy at the International Center for Law and Economics (ICLE).
Dirk AuerDirector of competition policy, International Center for Law and Economics
"Losing either one of the houses in Congress would make it harder for the Democrats to pass these bills," he said. "If they had a very strong bipartisan coalition to pass these bills, that would have been done already."
Bloomberg reported that the Biden administration will attempt to push some of the antitrust reform bills forward in the lame-duck period following the midterm elections. If the Republicans control one or both chambers of Congress, their support for antitrust reform bills during the lame-duck period will erode and likely won't progress on Democrats' terms, Auer said.
"They will want to leverage their stronger position and get the bills they want," Auer said.
Section 230 reform
With the rise of misinformation on social media, reforming Section 230 to make companies more liable for content shared on their platforms has also been debated in the last year.
Most of the bills introduced by both parties to reform Section 230 lack traction in Congress, something the midterm elections are also unlikely to change, said Kristian Stout, director of innovation policy at ICLE.
Stout said such strong disagreements exist between Republicans and Democrats on Section 230 reform that actual change to the law or interpretation of the law would most likely come from the Supreme Court instead of Congress. The Supreme Court might pursue a First Amendment case raised by the social media laws in Texas and Florida banning tech companies from removing content based on users' political beliefs.
"I don't think Congress is going to come out with radical changes to 230 anytime soon," Stout said.
Data privacy legislation
Data privacy is another issue with bipartisan support in Congress, but not enough agreement to advance a bill creating a federal data privacy law. The U.S. currently does not have a federal data privacy law like the European Union's GDPR.
While multiple bills have been introduced on both sides of the aisle addressing data privacy concerns, such as ADPPA, they have yet to garner enough bipartisan backing to pass both chambers.
Instead, there's a greater likelihood of more state privacy laws being introduced going forward, said Cristobal Cheyre, assistant professor in Cornell University's information science department. Mechanisms such as the newly introduced EU-U.S. Data Privacy Framework will continue to enable data transfers with other countries while the U.S. lacks an overarching federal data privacy law, he said.
"I doubt, whoever controls Congress, that we will see federal data privacy regulation in the next couple of years," Cheyre said.
Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.