Platforms like Google, Facebook, and Amazon are not only shaping our economy, but our society—with questions of privacy, monopoly power, online racial discrimination, misinformation, hate speech, incitement, and impacts on mental health at the fore of the policy debate.
In a democratic society, designing policies to mitigate the harms—while preserving the benefits that these platforms bring, and keeping true to a range of principles and ideals to which most Americans subscribe—is hard. It often entails balancing one individual’s rights against another’s.
But an issue that unites Americans across political and geographic divides is that these corporations, collectively known as “Big Tech,” have too much power over nearly every facet of our lives. Even those, like X, that have lost the confidence of advertisers have the power to push whatever agenda they want. Big Tech monopolists are squeezing consumers, workers, and smaller businesses, and, with social media’s business model of engagement through enragement, contributing to the polarization of our society.
A robust debate is underway over the new rules needed for the digital era to deal with the host of digital harms with which our society has become concerned. But special-interest lobbyists have been trying to make an end run around the democratic process, seeking to tie our hands through binding trade agreements before we figure out what’s right. Big Tech lobbyists are exploiting the secrecy surrounding ongoing negotiations at the World Trade Organization (WTO) and elsewhere in an attempt to quietly rig international rules. These so-called digital trade rules would impose binding constraints on efforts by Congress, the Biden administration, and their counterparts around the world to regulate the digital sphere. The United States and other WTO signatory countries would be subject to trade sanctions unless and until they eliminate domestic policies that WTO enforcement tribunals deem to violate such constraints.
Big Tech’s trade-pact ploy is to create a global digital architecture where America’s digital giants can continue to dominate abroad and are unfettered at home and elsewhere. These tech giants are motivated not by patriotism but by money. In pushing for particular rules in international trade agreements, the lobbyists are trying to foreclose debate, arguing that any government intervention, including those actions designed to promote competition and prevent digital harms, is an unfair and inefficient restraint on trade. The result of this backdoor strategy, were it successful, would be to constrain the U.S. government—and its partners—from adopting and enforcing privacy, data security, competition, and other policies in the public interest.
This is not the first time that trade negotiations have been used to enshrine corporate profits at the expense of the public interest. For decades, Big Pharma has successfully fought for trade-pact rules to expand patent protections, limiting affordable access to lifesaving medicines. We saw the consequences in the HIV/AIDS and COVID-19 pandemics, with many dying needlessly as a few countries refused to grant the intellectual property waiver that would have allowed increased production and lower, more affordable prices of generics.
Big Tech learned the lessons of Big Pharma, and since at least the second Obama term has been engaged in stealthily trying to embed restrictions on legislation and regulations in trade pacts.
Its use of this strategy became widely visible in October 2023, when the Biden administration formally withdrew U.S. support for four specific provisions limiting digital regulation that lobbyists had convinced the Trump administration to propose at the WTO four years before. (The Trump-era terms that the Biden administration refused to support were a departure from provisions incorporated into earlier U.S. trade agreements and appear in almost none of the nearly 200 existing trade agreements with digital trade or e-commerce provisions worldwide.)
Not surprisingly, Big Tech lobbyists are now on a desperate mission to reverse the Biden administration’s decision. (The administration had already suspended talks on similar provisions in Indo-Pacific Economic Framework talks last year.) Their lobbyists have geared up the U.S. Chamber of Commerce and just about every other corporate lobbying group to help.
The strong Biden stance at the WTO came after Democratic and Republican senators and representatives, businesses from Yelp to Match.com to news media companies, unions, farm groups, civil rights groups, and others had asked the administration to stop Big Tech’s digital trade tactic.
The smaller digital companies knew better than most how Big Tech was using anticompetitive practices to tilt an already-difficult playing field against them, and they worried that the digital rules being pushed in the trade agreements by Big Tech would make it all the more difficult for competition authorities to do what they could to enhance a competitive marketplace. A more competitive marketplace will lead to a stronger tech sector that benefits workers and larger U.S. firms as well as small businesses.
Not surprisingly, the lobbyists from digital firms with market power want rules that would enable them to entrench and extend that power. One of the four provisions Big Tech was trying to get at the WTO would label most competition policies as illegal trade barriers that must be eliminated. This rule, a perversion of the trade nondiscrimination principle, would constrain government actions against digital companies’ market dominance, threatening competition policies from the European Union’s Digital Markets Act to the bipartisan American Innovation and Choice Online Act proposed in the United States. This rule would undermine Australian and Canadian legislation that requires mega-platforms that monopolize the advertising sector to negotiate compensation with the news media whose content they profit from without paying for it, as well as a Korean law that would require fair play from app stores. The bipartisan Journalism Competition and Preservation Act and the Open App Markets Act bills would enact similar policies in the United States; Big Tech’s proposed digital trade rules threaten these as well.
Another of the Trump-era Big Tech demands at the WTO was that digital trade rules guarantee platforms and data brokers almost absolute control over our personal data. Locking these corporate rights into a trade pact would undermine government enforcement of much-needed U.S. national privacy protections—or even laws that keep sensitive American data from unfriendly nations, such as the data broker oversight bill that unanimously passed the House on March 20, 2024.
A recent executive order from U.S. President Joe Biden on “preventing access to Americans’ bulk sensitive personal data and United States government-related data by countries of concern” regulates flows of Americans’ sensitive geolocation, biometric, health, and other data for national security reasons. This order would stop big platforms and data brokers from their recently exposed practice of selling sensitive information to the Chinese and Russian governments. But if Big Tech gets its way, the House-passed bill—and Biden’s executive order—would be forbidden as illegal trade barriers under the digital trade agreement.
But while Big Tech demands that ordinary citizens give up their privacy, it is demanding for itself new secrecy rights not available in U.S. law. This includes a rule that would thwart governments from conducting pre-reviews of automated decision-making algorithms. These algorithms, when used by businesses, can determine who gets loans, jobs, apartments, and even who gets bail or jail. Prescreening is needed to safeguard Americans from harms caused by the use of algorithms that can disguise not only racial, ethnic, age, and gender discrimination but wage and hour abuses and facilitate consumer rip-offs like algorithmic pricing that charges some consumers more than others. There is no check on these algorithms at the moment, and screening is central to numerous bipartisan bills as well as the president’s executive order on AI.
The secrecy provisions would also undermine “right to repair” policies that guarantee access to software updates and “digital keys” so people can update and repair their phones and other products and save money by using independent repair shops to fix equipment.
One key tactic the lobbyists are employing in this fight is to try to direct the debate away from Big Tech misconduct and into a foreign-policy frame, claiming that the industry’s demands are essential for U.S. global leadership if we are to win the economic war with China. Their argument that somehow the United States’ withdrawing support for unpopular digital trade proposals promoted by Big Tech lobbyists would strengthen China’s hand, or make Chinese proposals with no support at the WTO suddenly popular, is absurd.
To the extent that there is any connection between these rules and America’s geopolitical interests, we would better our position by promoting standards that align with our values. Many countries would join the U.S. in supporting rules that ban forced data localization and promote the data flows needed for the internet to function, while also not conferring new rights over our data to private firms and providing room for privacy policies.
There’s also the claim from industry lobbyists that strong new secrecy protections are necessary to keep China or other countries from stealing U.S. innovations. Yet China and all WTO signatory nations already are bound to WTO “trade secrets” rules that, like U.S. law, forbid governments from sharing confidential business information, including algorithms and source code, that they may access for safety inspections. Enforcement actions against China or other violators make sense. But banning all governments from inspecting AI will only mean the industry interests evade oversight by those governments that do follow the rule of law.
Many of the provisions in question are complex—and it is exactly that complexity the lobbyists try to use to their advantage, arguing that these are matters too complicated for ordinary people. Because digital rules are written in arcane trade jargon, their meaning is often unclear. For instance, the industry-favored rules forbidding governments from regulating data flows appear to have an exception for policies “necessary to achieve a legitimate public policy objective.” Except the provision replicates existing WTO exception language that is packed with legal hurdles—exceptions to the exceptions—and that has proved to be entirely ineffective: In the 48 attempts where countries have tried to make use of this exception to defend some policy, WTO tribunals have ruled against the exception’s use 46 times.
But once unpacked from trade-lingo arcana, it is painfully apparent that these digital trade proposals would handcuff Congress, the Biden administration, and future administrations as well, preventing them from doing much of what the American public is demanding to curb Big Tech abuses and for which there is bipartisan support.
Whether one agrees or disagrees with a particular measure to promote competition and circumscribe digital harms is not the question. There is a debate to be had about how best to circumscribe the digital harms and how best to promote competition consistent with a reasonable interpretation of the Constitution and our values. Some think that Europe’s actions, like its Digital Markets Act (DMA) and Digital Services Act (DSA), have gone too far; others think they haven’t gone far enough. Some worry that Australia’s bargaining code won’t deliver enough to small news outlets and will give too much to the already-powerful Murdoch news empire. (I have my views: We need stronger competition and digital protection laws than the DMA and DSA, and the Australian bargaining code is an important first step in redressing a set of major problems.)
What should not be controversial is that critical decisions must not be made stealthily within trade agreements, but rather through a robust public discussion.
But special-interest battles never end quietly. There is a strong rear-guard action by the Big Tech lobby to reverse the Biden administration’s October decision. Improbably, some elements of the Biden administration seem to support that mission.
I stand strongly with the mainstream of the Biden administration and the American people who want a safe, competitive digital economy, one that neither invades our privacy nor discriminates.
As U.S. Trade Representative Katherine Tai said in a recent speech, “[These] issues are very much consequential, not just for trade and economics, but for our entire society.”
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