A NEW CONGRESS TAKES SHAPE AND THE FIGHT BEGINS

Results from the US midterm elections are in. Democrats have maintained control of the Senate, while Republicans have assumed a narrow majority over the House. Now that the balance of power is established, we’re able to share our analysis about what it all means for Fight for the Future’s work defending basic rights in the digital age. Please consider making a year-end donation or becoming a monthly donor, which is the best way you can support our work.

2022 Victories

Our Plan

The stakes are extremely high. Hot-button tech policy fights like data privacy, antitrust, Section 230, corporate surveillance and content moderation will have direct and lasting effects on central issues like abortion access, voting rights, racial justice, and LGBTQ+ protections. Elon Musk’s takeover of Twitter has highlighted the dangers of concentration in the tech sector, and shown the importance of defending decentralized and open source alternatives from overly broad and misguided government attacks.

Fight for the Future is fiercely nonpartisan, but the makeup of Congress unavoidably impacts our work. As of right now, it’s still looking likely that Republicans will take control of the House, but by significantly narrower margins than expected. Democrats have maintained control of the Senate and may pick up an additional seat in the Georgia runoff, lessening the influence of Manchin and Sinema as deciding votes. 

A Democratic Senate could clear the path for some of our key priorities, but the bigger picture is that the US Congress’s razor-thin margins will limit what can move forward. To cut the NPR-speak: Tech policy debates in Congress have been pretty frustrating over the last couple years, and they’re going to get at least a little bit worse.

That means a few things. One, it means we need to quickly capitalize on massive public demand for the handful of crucial things Congress could do during the post-election “lame duck”: passing the antitrust bills AICOA and OAMA, and getting Gigi Sohn confirmed to the Federal Communications Commission (FCC). Democrats holding the Senate makes both of these priorities much more likely, but we need to push hard NOW.

Two, with Congress poised to become even more gridlocked, we’ll need to redouble our efforts to build overwhelming popular support for agencies like the FCC and FTC to use their rulemaking power for good. It’s within these agencies’ power to restore net neutrality and crack down on corporate surveillance and anti-competitive nonsense. We should expect a Republican-controlled House to slow these Biden-run agencies down and throw sand in their gears, so they’ll need political cover from the grassroots to overcome that opposition. The overturning of Roe v. Wade also means many state legislatures will move in the coming months to criminalize a wide range of activities surrounding abortion access, including online speech and fundraising. These draconian laws will be enforced through electronic surveillance, bringing data privacy battles into focus. 

Fight for the Future has always recognized the limitations of what we can accomplish through the legislative process alone, and with Congress as borked as it has been (last time we’ll say borked ;-), we’ve focused a lot of our strategy on what we can accomplish outside of Congress through grassroots pressure on companies and institutions. For example, while privacy legislation stalled, our high-profile #BanFacialRecognition campaigns got more than 40 of the world’s largest music festivals and more than 60 of the United States’ most prominent colleges and universities to say they won’t use facial recognition surveillance. We then leveraged the press coverage around that to build support for stronger policies in Congress. 

We’ll need to continue that two-pronged strategy: using a combination of tech tools, creative stunts, and splashy headlines to shift the narrative and slow down the spread of harmful tech and bad policy, giving us time to fight for the types of policies (and tech!) we need to build the future that we want.

Here’s a quick rundown of the key issues we're focused on, how the midterm results impact the threats and opportunities surrounding them, and what we’re planning to do in the coming year. It’s a lot! Please consider making a year-end donation or becoming a monthly donor, which is the best way you can support our work.

Antitrust

The next few weeks are do-or-die for our efforts to rein in the monopoly abuses of Big Tech giants. The “lame duck” (we really need a better term for this) is likely our last chance to pass AICOA and OAMA, two good antitrust bills that would crack down on self-dealing and anti-competitive practices used by companies like Apple, Google and Amazon. We’ve pulled out all the stops to get Senate Majority Leader Schumer to move these bills, from parking a billboard truck outside his house to mobilizing a massive coalition of small companies and civil society groups to demand a vote. After we launched an open letter at BidenPromised.us, the White House said they plan to make Big Tech antitrust a priority over the coming weeks. That’s a huge boost! We need to push as hard as we can to get a vote on these bills while there’s still time. When folks like Jim Jordan get control of the tech policy agenda in January, any action on antitrust will be unserious at best.

Data Privacy

Passing comprehensive federal data privacy legislation was a tall order before the election, and it’s about to get harder. A Republican House may still try to advance the American Data Privacy Protection Act (ADDPA)—but the GOP will be in a better position to water it down even more than it has been. (On top of that, a number of state privacy bills are set to go into effect in 2023. Companies want to avoid a patchwork of policies, so they could start pushing lawmakers to pass a weak federal bill.) We’ve been cautiously optimistic about ADDPA. It’s a good faith effort, and we love the civil rights language in it. But we hate the pre-emption language, and there are a lot of areas where it could be strengthened. If it does start to move, we’ll be pushing as hard as we can to stop lawmakers from inserting corporate-friendly loopholes.

The FTC has announced its rulemaking on surveillance and data security and received comments, but we still don't know the details of what they plan to do. We'll be pushing the agency hard to crack down on things like commercial use of facial recognition, data harvesting, using personal data to power algorithmic recommendations that lead to harmful or discriminatory outcomes, collection and sale of location data, and more. To outfox GOP plans to defund regulatory agencies, activists will need to keep up the pressure and demand that Lina Khan push forward over disingenuous opposition.

Decentralized Technology

Elon Musk’s takeover of Twitter has led to an explosion of interest in more decentralized social media networks like federated Mastodon and just-getting-off-the-ground Bluesky. This is helpful as we continue trying to educate progressive lawmakers about the importance of decentralized, open source, peer-to-peer technologies and the need for regulation in this area to be thoughtful and center human rights. Nobody but billionaires want a future that only the richest own, and we are working to carve out legislative breathing room for real, community-owned alternatives so that Elon et al can’t buy up our whole digital world.

At the same time, the spectacular collapse of FTX already has the Treasury department promising more crackdowns. The crypto industry, like the rest of the tech industry, needs robust consumer protection, especially around privacy and security. But we’ll need to continue pushing back against overly broad or poorly crafted regulatory efforts that undermine the basic First Amendment rights of software developers, or make it harder to build privacy tools that protect people from financial surveillance. For example, we wrote for Lawfare about how OFEC’s hamfisted attempt to sanction TornadoCash poses a threat to privacy, free expression, and human rights. Crypto policy has become somewhat partisan in Washington, but it’s possible Republicans in charge could push progressive Democrats to start engaging more seriously on this issue. We organized dozens of meetings with progressive offices over the last year, and plan to continue those educational efforts, pushing for crypto regulation that centers human rights and the needs of marginalized people.

We are also seeing a lot of these issues come to a head as the Biden Administration considers the creation of a digital dollar. We recently launched our No Spy Cash campaign with the ACLU to demand that this attractive vehicle for government surveillance of our everyday transactions instead be private by design. As proposals for such a technology move forward, we will be fighting for a future of privacy-preserving financial transactions. Such protections will likely prove to be existential for people like abortion patients and those seeking gender-affirming healthcare.

And on the horizon we are starting to organize a sign-on letter to the new Congress from open source and decentralized projects on the necessity of privacy as a human right. If your project would like to be involved, get in touch.

End-to-End Encryption

As we near the end of the Congressional session, it seems clear that (for now) we’ve successfully staved off an attempt to pass the encryption-killing EARN IT Act. That’s the good news. But the overturning of Roe has only made it more urgent to make end-to-end encrypted messaging more widely accessible. While the mainstream press has focused on things like period tracking apps, people on the frontlines—abortion providers, abortion funds, and activists—are most concerned about having their communications obtained via subpoena or otherwise monitored. 

This fall, we launched MakeDMsSafe.com, a major campaign that’s still gaining steam. We’ve partnered with 60+ rights organizations to call on Meta, Google, Apple, Twitter, Discord, Slack and other messaging services to implement end-to-end encryption by default wherever possible. Several of the companies have already reached out to us offering to meet, and we’re continuing to escalate. The goal here is twofold: get more companies to offer end-to-end encryption to more people, and build public understanding and support for secure messaging, so that we can push back on corporate and government attacks (like Apple’s on-device scanning proposal or pending regulations in the UK).

Campaigns:Make DMs Safe

Government and Private Surveillance

Opportunities for bipartisan action under the next Congress will be few and far between, but there’s reason to hope for cross-the-aisle agreement on initiatives to rein in government surveillance. Republicans and Democrats have both condemned federal government use of facial recognition by the IRS and Border Patrol, for example. While we continue to support the strong facial recognition moratorium bill introduced by Democrats last Congress, we'd also support narrower measures that prohibit federal funds for being spent on facial recognition in schools, by the IRS, for federal housing, or for other specific use cases. 

Meanwhile, we’ll work with sympathetic lawmakers to get companies to reduce the harms caused by their private surveillance tech and limit the collection, retention, and sharing of our data. We also need the FCC to enforce its own rules about private surveillance to crack down on Amazon’s surveillance empire.

Net Neutrality and Internet Access

The FCC will have to use every ounce of its rulemaking authority to protect democracy and basic rights by cracking down on telecom and tech monopoly abuses. Deplorably, the agency has been handicapped for over a year by the Senate’s refusal to confirm commissioner appointee Gigi Sohn. We’ve raised hell about this, and during the lame duck we’ll make a concerted push to restore the agency to ensure she is confirmed—because net neutrality, broadband privacy, and the collection and sale of location data all hang in the balance. 

On the state level, Alabama and New Mexico passed ballot measures that should unlock investment in broadband infrastructure. Additionally, three cities and one county in Colorado are voting to reject a telecom industry-designed restriction on high-speed internet funding, a first step towards freeing internet speeds from carriers’ determinations of profitability.

We’ll be pushing to get Gigi confirmed to the FCC before this Congressional session ends, and then urging the FCC to move as quickly as possible with key priorities like restoring Title II.

Section 230 and Online Free Expression

Republicans control of the House means that tech policy conversations around content moderation and Section 230 to get significantly stupider (if you can imagine such a thing). The GOP, which continues to noisily claim that social media platforms “censor conservatives,” will likely trot out a series of bills that reform or repeal Section 230. These bills, however, will be nonstarters with Democrats. 

Our hardest task on the free expression front will be to prevent the kinds of unholy alliances that led to bad bills like the EARN IT Act gaining mainstream acceptance. We’re less worried about Republican grievance bills than we are about bills that are framed as being about "protecting kids" or "stopping opioid sales.”

Democrats should be especially cautious when approaching possible changes to Section 230 in the wake of the overturning of Roe. Republican state lawmakers are eager to introduce bills that criminalize hosting or sharing abortion information online. Similarly, Republicans’ attacks on transgender and queer people may expand into direct internet censorship of, for example, a social media platform that hosts groups for trans kids or parents seeking gender-related health care. As we’ve said before, Section 230 is the last line of defense for online speech about abortion and LGBTQ+ issues.

One thing we'll be pushing is for Democrats to sign onto the Safe Sex Workers Study Act, which would direct the government to study the damaging impacts of the last major change to Section 230, SESTA/FOSTA. Congress must do its due diligence before rushing to amend or repeal 230—especially when there are so many other ways to approach Big Tech accountability, like privacy and antitrust legislation. Finally, we’ll be watching Gonzalez v. Google, a high-stakes Supreme Court case that could wipe Section 230 from the books. Whatever the Court decides will likely lead to Congressional chaos—but could also create an opportunity for us to act.

Copyright and Access to Knowledge

Fight for the Future has long fought for a world where people have universal access to human knowledge and creativity, while artists and creators are fairly compensated for our labor. This past year, we’ve helped beat back misguided legislation, like the JCPA, modeled after Australia’s notorious “link tax” provision. We’re hopeful that this bill won’t move before the end of the year, but we’ll be on the lookout for it coming back. We’re also concerned about rumors that Senator Tom Tillis (R-NC), aka Disney’s favorite Senator, will make another push for a draconian rewrite of the DMCA next Congress. You can bet we’ll get all hands on deck for another SOPA-like moment if that happens.

We’ve also been rallying authors, musicians, and other creative workers to push back against the Big Content industry’s attacks on libraries and online free expression. Last month we organized “Authors for Libraries,” an open letter signed by more than 1,000 authors including Neil Gaiman, Alok Menon, Naomi Klein, Saul Williams, Hanif Abdurraqib, Amanda Palmer, Lawrence Lessig, Chuck Wendig, and Cory Doctorow. The letter condemned the “big five” publishers’ lawsuit targeting the nonprofit Internet Archive, and explained how these copyright maximalist attacks threaten the rights of libraries to purchase and own books. The letter provoked an animated response and was covered by Reuters, Publisher’s Weekly, and other major outlets.