The Biden administration arrived in Washington with an ambitious agenda for taming Big Tech, which it portrayed as concentrating too much power in the hands of a few billionaires — the moguls of a new, digital Gilded Age.
The world’s richest person has bought one of its most influential social media platforms — and Washington’s hands are largely tied.
Musk, notorious for flouting regulators and running afoul of the Securities and Exchange Commission, will wield enormous discretion over thorny decisions about what content stays on and off the social network, and how the company handles the data privacy of its millions of users. By taking the company private, Musk will be subject to even less scrutiny than powerful executives of other publicly traded companies, such as Meta CEO Mark Zuckerberg.
Lawmakers now find themselves stymied, after failing for years to implement guardrails on social media companies that might force greater accountability of Musk. The deal does not present obvious antitrust conflicts, exposing the limits of Congress’s recent focus on regulating the largest tech platforms.
“We’ve been asleep at the wheel,” said Rep. Ro Khanna, a Democrat who represents Silicon Valley and has advocated greater regulation of the tech industry. “It’s unsettling that a change in ownership can create that kind of change in public discourse.”
Activists, academics and lawmakers who once pinned their hopes on a more assertive federal government now are increasingly looking abroad — mainly to Europe — in the hopes that foreign regulators might have the clout to curb Silicon Valley’s worst abuses. European policymakers appeared eager to take up that mantle, responding with a warning for Musk.
“Be it cars or social media, any company operating in Europe needs to comply with our rules — regardless of their shareholding,” tweeted Thierry Breton, the European commissioner for the internal market. “Mr. Musk knows this well. He is familiar with European rules on automotive, and will quickly adapt to the Digital Services Act.”
The rhetoric across the Atlantic stood in contrast to the White House, where press secretary Jen Psaki declined to comment on the deal. She said that President Biden has “long been concerned about the power of large social media platforms.”
Musk has sought to portray himself as a “free speech” absolutist, saying in a Tuesday tweet that he is against “censorship that goes far beyond the law.”
“If people want less free speech, they will ask government to pass laws to that effect,” he wrote.
But despite the majority of Americans supporting greater regulation of tech companies, Washington has not passed comprehensive legislation on the tech industry in decades.
The Biden administration and Democrats promised an unprecedented regulatory assault on Silicon Valley when they regained power in Washington in 2021. Motivated by the role they said Facebook, Twitter and other social networks played in spreading falsehoods during the 2020 election and inflaming extremism, they proposed changes to an Internet liability law known as Section 230, privacy protections and new competition rules. Biden named prominent tech industry critics to key antitrust enforcement roles. Following revelations from Facebook whistleblower Frances Haugen later last year, they expanded their vision — promising children’s safety legislation and greater transparency around the black box algorithms that power major tech platforms.
Yet as the midterm elections approach, many Democrats are fearful their party will lose control of the House and possibly the Senate — closing their window to pass significant tech legislation.
The party’s ambitions have collided with the realities of governing in a deeply polarized Washington. Lawmakers in the United States are more constrained than their European peers in regulating social media, because of First Amendment protections that limit government regulation of speech. Tech regulation has also taken a back seat to pressing policy dilemmas as the pandemic stretched into its third year, inflation rose and war broke out in Europe. And with a fragile majority broken only by Vice President Harris’s tiebreaking vote in the Senate, Democrats have struggled to achieve even basic tech policy goals — such as breaking the 2-to-2 deadlock at the Federal Trade Commission, the regulatory agency tasked with overseeing competition and privacy issues in Silicon Valley.
“I haven’t seen much of anything from the Biden administration,” said Katie Harbath, a former Facebook public policy director and CEO of consultancy Anchor Change. “Europe’s eating the United States’ lunch on this.”
The legislation that has the most momentum in the Senate are bills that would regulate app stores and prevent large tech platforms from boosting their own products and services over those of their rivals. But neither would apply to Twitter, which has a significantly smaller footprint than Facebook, Apple, Google or Amazon. (Amazon founder Jeff Bezos owns The Washington Post.)
“They’ve done nothing to date except talk about it,” said William E. Kovacic, a former Republican chair of the FTC. “If they want to effectuate basic change, they have to change the law.”
Musk will be required to report his purchase of Twitter to the FTC and the Justice Department, which could slow down the deal by requesting detailed information about the transaction, Kovacic said. But Kovacic said he didn’t see a competitive link to Musk’s other businesses, making it unlikely the agencies would block it.
Tech regulation is at times presented as a bipartisan policy issue, with Republicans and Democrats alike bashing the industry. But despite a flurry of bills and dozens of hearings, the parties are fundamentally at odds over how they believe social networks should be regulated, with Democrats pushing companies to address misinformation, while Republicans critique these limits.
This split-screen reality was on display in the fallout of the Musk deal. The same Republicans who had once criticized former Twitter CEO Jack Dorsey for wielding too much power over Twitter celebrated Musk taking the company into private hands, suggesting that it was a victory for “free speech.” Meanwhile, Democrats criticized the deal as a sign that billionaires have too much influence over the economy, calling for greater tech regulation and wealth taxes.
“Republicans are claiming Musk as their digital Paul Revere, that he’s going to save them and give them a voice again, and the Democrats are expressing concerns about that,” said Jeffrey Chester, the executive director of the digital rights advocacy group Center for Digital Democracy. “It reflected all the deep divisions that our country is enmeshed in.”
In the absence of legislation, lawmakers have largely used congressional hearings and their media megaphones to keep pressure on tech moguls, hauling in Zuckerberg, Dorsey, Bezos and Alphabet CEO Sundar Pichai. Khanna said Congress should have a hearing with Musk to press him on his plans for Twitter, especially how the company’s corporate governance would be structured.
Policy experts largely expect such a hearing with Musk, who is known for his brusque criticism of lawmakers, would devolve into a media frenzy. Musk has bashed Sen. Elizabeth Warren (D-Mass.) as “Sen. Karen” during a Twitter feud about tax policy, and vulgarly suggested that the profile picture of Sen. Ron Wyden (D-Ore.) looks like he just had an orgasm.
“I’m sure it will make great TV, but not good, substantive conversation,” said Evelyn Douek, a senior research fellow at the Knight First Amendment Institute at Columbia University.
Musk appeared to acknowledge the likelihood that he would be called to Capitol Hill, tweeting a smiling emoji in response to Box chief executive Aaron Levie, who tweeted that Musk would “like to be the only human that can be called to congress for up to 63 different topics.”
The challenge of regulating Silicon Valley is compounded because the most controversial developments around social media — such as the Musk deal or social networks kicking off President Donald Trump — get the lion’s share of public attention. But areas where there is more consensus, such as passing privacy legislation or transparency requirements for tech platforms, don’t get as much traction.
“We get distracted by these shiny, fantastical, movie-like storylines, while the fundamental, boring systemic issues that need fixing just chug along,” Douek said. “It would be great if we could pick up some of the low-hanging fruit.”
Some policy experts say the challenges in regulating social media companies are indicative of the broader ineptitude in Washington, where Biden’s efforts to pass a signature social spending initiative have been stalled for more than a year.
“We are paralyzed in many, many ways right now,” said Ethan Zuckerman, an associate professor of public policy, information and communication at University of Massachusetts Amherst.