[Frank Pasquale] The coming battle over Trump tech policy

Over the past three years, one of the US’ top tech regulators has been Federal Trade Commission (FTC) Chair Lina Khan. Since publishing her remarkable Yale Law Journal article “Amazon’s Antitrust Paradox” in 2017, Khan has been a leading voice fighting concentrated corporate power and protecting consumers in the US Her FTC sued Amazon, and other big tech companies, for anti-competitive practices. It has also vastly improved its privacy enforcement efforts, and has comprehensive data protection plans in the offing.

Those plans are now in serious doubt. A few days before the election, Elon Musk tweeted that Khan “will be fired soon.” Musk has enormous influence in Trumpland, having run the former and future President’s “ground game” (to turn out voters) and donated at least $130 million to Republican campaigns. That is less than 0.05 percent of his total fortune, now estimated to be $300 billion -- so he could spend the same amount in the next nineteen elections and still keep 99 percent of his fortune, all other things being equal. He may well spend far more. Musk also turned his X platform into Trump Central, boosting conservative content in its algorithmic feeds.

Vice President-elect J.D. Vance has already suggested that the new administration may condition NATO funding on Europe gutting key internet regulations, asserting that “we’ve got to say American power comes with certain strings attached.” This is music to Musk’s ears, as the Tesla tycoon is battling regulation on multiple fronts.

But we also see fault lines developing: one camp of Trumpists is pursuing a broadly deregulatory agenda, hostile to agencies like the Federal Trade Commission and National Labor Relations Board, while another sees these agencies as critical instruments of governance.

Vance and Musk in some ways represent these divergent Republican factions, revealing their clashing priorities. While Musk trashed Khan, Vance has praised her for “being very smart.” The conservative think tank American Compass has applauded Vance, and supports both public investment in critical industries and organized labor. A major union leader was invited to address the Republican National Convention. Meanwhile Musk, along with many orthodox Republicans, wants to sharply curtail union power.

Health technology policy is also a point of tension. Big pharmaceutical firms have long supported Republicans’ laissez-faire health insurance policy as a way to maximize their profits. Trump 1.0 reciprocated by appointing generally respected figures (like Scott Gottlieb and Alex Azar) to head the Food and Drug Administration and the Department of Health and Human Services. But now, buoyed by Robert F. Kennedy Jr.’s support during the campaign, Trump has thrown into doubt the future of public health policy in the US. This has global consequences, since American pharmaceutical research ultimately cures diseases globally.

Trump has scared pharmaceutical firms by promising Kennedy a large role in his administration. Trump allied with Kennedy despite the latter’s many discredited conspiracy theories. Kennedy has suggested that Wi-Fi causes cancer and “leaky brain;” that vaccines cause autism; and that COVID vaccines in particular were part of a plan to control persons through microchips. Expect an epic Senate confirmation battle, including resistance by pro-pharma Republicans, if Trump nominates Kennedy to any important position in his administration.

Of course, there is one tried and true method of resolving all these controversies, foreshadowed by Vance’s call for Europe to deregulate US big tech. Trump’s Team may set a general rule that is tough on internet platforms, pharmaceutical firms and other tech-intensive industries, and then grant exemptions (or withhold enforcement) for particularly Republican-friendly firms. US administrative law grants the President and his appointees enormous discretion to decide when to enforce given statutes or regulations, and against whom to do so.

Commentators are already speculating that this kind of discretion will need to be a major part of Trump’s proposed tariff regime. Some US manufacturers are likely to find that a 10, 20 or 60 percent tariff on components they import to make their goods will bankrupt their companies. They will be pleading with the Commerce Department for some relief -- and Trump 1.0 granted exactly such relief to hundreds of companies in his first administration. Expect to see similar special pleading if tariffs are unleashed in 2025 -- with all the opportunities for both economic planning, and corruption, such a process entails.

Another resolution to the contradictions between laissez-faire and dirigiste Republican tech policy is more ideological than material: convince key constituencies that you’re helping them, whatever your policy’s actual effects. Trump is above all an entertainer and story-teller, skilled at cultivating emotions of grievance and superiority. Expect promotion of privatized space travel as the US’ next great frontier, even as public transit infrastructure further crumbles. Citizens will be promised more and better technology innovations, even as tax cuts erode the state’s ability to subsidize them with research and development grants. Like Ronald Reagan’s “morning in America,” Trump’s declarations of America’s greatness may be all his constituency needs. As long as the promise of a better day is kept bright, material accomplishment of it can remain indefinitely deferred.

Sociologist Tressie McMillan Cottom has offered an important insight on this phenomenon. According to her election analysis, she saw among many voters “acceptance and integration of Donald Trump’s vision of an America where no one has to give up anything to win.” On Trump’s telling, foreign companies are the golden goose that will pay all US tariffs. For some of his prominent tech supporters, innovation in general -- once unleashed from the shackles of government regulation -- will feed the hungry, house the homeless, and eventually provide boundless plenty and leisure for all. It is comforting to many to imagine that one man or method -- Trump or technology -- can “make America great again.” A Trump cornucopia is supposed to placate unions and union-busters, regulators and deregulationists, vaccine manufacturers and anti-vax conspiracy theorists. The question now is how soon harsh realities of competing corporate, ideological and geopolitical interests burst this bubble.

Frank Pasquale

Frank Pasquale is a professor of law at Cornell Tech and Cornell Law School. The views expressed here are the writer’s own. -- Ed.