State of the Fight (for the Future)

Before this year’s State of the Union, we wanted to share some reflections on where we are and where we hope to be next year in fighting for digital rights.

Tonight we’d love to see President Biden refocus on the real harms of Big Tech: monopoly power and surveillance capitalism as a business model. For one thing, he should say clearly that he does not support slashing the DOJ’s antitrust budget. And he should call for strong privacy and antitrust legislation rather than legislation that will enable an increase in censorship and the expansion of surveillance.

What we need are policies that regulate surveillance, not speech, and design, not content. We also need antitrust actions to break up monopolies to ensure there is space for privacy-preserving or community-owned platforms and tools to grow. We’d like to hear President Biden being a champion for antitrust enforcement by supporting agencies and giving them the tools and budget they need to do their jobs.

Finally, while we are an organization focused on technology, we cannot ignore the role that US technology and weapons are playing in the ongoing genocide in Gaza. We hope President Biden will call for a ceasefire, and start shifting US policy away from enabling human rights violations.

Beyond the State of the Union, here is where we see the state of the fight for digital rights:

Artificial intelligence

Tech CEOs and pundits are trying to dazzle and confuse us with highly theoretical discussions of “existential risk” and self aware killer robots. But our work stays rooted in the ways that AI is already impacting people’s lives: from the use of facial recognition surveillance in retail stores and airports to dangerous and discriminatory “productivity monitoring” algorithms used on delivery drivers and Amazon warehouse workers.

Biden’s Executive Order on AI laid out a loooooong agenda for agencies to create policies for government use of AI, but the proof will ultimately be in the pudding. Most of the actions thus far have been focused on staffing up, but we need agencies to aggressively prioritize civil rights in policies and guidelines on AI. To that end, we were pleased to see the FTC step up and issue an order banning Rite Aid from using facial recognition technology for five years due to the harm consumers faced based on the use of this technology.

Unfortunately, Congressional dysfunction has stalled many bills like the Traveler Privacy Protection Act and the Facial Recognition and Biometric Technology Moratorium Act that would protect people from intrusive facial recognition technology, and the Algorithmic Accountability Act that would provide valuable oversight over machines that make decisions impacting people’s lives.

We will work towards thawing this progress towards protecting people from dystopian uses of AI technology.

Free Expression

Congress has had a bad habit of introducing bills that allow the government to have a say in who gets to speak and how. Bills like the EARN IT Act and the introduced versions of KOSA and STOP CSAM would have been devastating for online speech, especially for marginalized communities. However, we’ve had some wins: LGBTQ youth speaking out forced changes to KOSA that will reduce harm and we’ve heard that work is being done on STOP CSAM to address the concerns of civil society. But the changes to KOSA still fail to address the foundational concern with the bill: that it can be weaponized by politically motivated state actors to pressure companies to silence speech they don’t agree with.

We think that lawmakers are not taking seriously the threats to speech and human rights in the states, and the eagerness of bad actors to use the law to target marginalized communities, especially given the risk that these bad actors will go into the federal government depending on the election. If they did, we wouldn’t have to still be fighting to make KOSA explicitly content neutral so that the law cannot be abused to try to go after protected speech. We need more champions to fight for free expression, and finding those champions is something we will be fighting for this year.

Privacy

While 2023 saw actual movement of comprehensive privacy legislation like the American Data Privacy and Protection Act, 2024 has failed to show the same prioritization from Congress. This is a problem, because whether you’re talking about AI or keeping kids safe online, we’re going to need strong privacy protections to address some of the biggest concerns. There has been good agency action from the FTC punishing abusive data brokers and the CFPB announcing a data broker rule, but without comprehensive policy we’re stuck playing whack-a-mole.

We hope to see movement on good common sense bills like the Delete Act, My Body My Data Act, and Algorithmic Justice and Online Platform Transparency Act. We will be fighting for these bills, and others, to make their way to the floor.

Antitrust

We’ve cheered on some good agency actions to address abusive monopolies, like releasing new merger guidelines, blocking a number of mergers, and securing a settlement with Epic Games that stopped deceptive practices while increasing privacy and protecting kids. But the recent budget proposals include significant cuts to the DOJ’s antitrust division funding. How on earth can we expect the government to enforce existing antitrust laws without the resources to do so? And we ultimately must go beyond existing law and pass antitrust legislation like AICOA and OAMA to truly address Big Tech’s power. We won’t stop fighting to reign in Big Tech.

Surveillance

Despite clear opposition from civil rights, immigrant, and racial justice groups, some members have continued to push to expand the discriminatory surveillance of FISA’s Section 702. Holding a secret session on this to avoid public scrutiny was pretty deplorable, but as the discussion continues, we continue to urge lawmakers to support closing the backdoor search and data broker loopholes, which allow for warrantless surveillance of U.S. citizens and protect peoples’ fourth amendment rights. We’ve been working with civil society to fix these problems, and won’t stop until the government stops spying on its citizens.