Analysts see tech policy changes in potential GOP-led Senate

WASHINGTON — Republican control of the Senate would likely tilt tech policy, ranging from regulation of artificial intelligence to expansion of high-speed internet, toward industry-friendly terms, according to analysts polled by CQ Roll Call.

The focus during the Biden administration, which has enjoyed a Democratic majority in the chamber, has been an increase of oversight of tech companies and protection for consumers.

Although the presidential and key Senate races in the November elections remain highly contested and too close to predict, some pollsters expect Republicans to wind up with 51 seats, a majority. One of the most highly watched races is in Montana, where incumbent Democratic Sen. Jon Tester is being challenged by Tim Sheehy. An average of polls calculated by ABC News’ 538 election site has Sheehy leading by 5.4 points as of Oct. 21.

“In the last four years, a lot of time has been spent on positioning the public interest when it comes to technology policy and paying particular attention to ways in which we bring more accountability to Big Tech actors, as well as balancing what I think is innovation alongside the most effective potential regulatory oversight,” said Nicol Turner Lee, director of the Center for Technology Innovation at The Brookings Institution.

Although Congress has proposed legislation to address harm stemming from technologies, “it hasn’t been successful in passing any major legislation,” Turner Lee said in an interview. Nevertheless, in a Republican-led Senate, “the public interest side will go out the window, and it will be more of a conversation around positioning innovation for market gain,” she said.

A flip in control also may mean that Sen. Ted Cruz, R-Texas, currently the ranking member on the Senate Commerce Committee, becomes chairman in the next Congress — assuming Cruz wins his race against Democrat Colin Allred. Polls have Cruz ahead, with some saying the margin is as close as 1 percent, according to Inside Elections with Nathan L. Gonzales.

While Cruz has supported narrow legislation to address tech harms, including from AI-generated pornography, he has criticized the Biden administration’s approach to regulating AI as well as bipartisan legislation to create a federal data privacy standard.

In a Sept. 21 event in Texas hosted by the U.S. Chamber of Commerce, Cruz said that too much regulation could choke off AI development and surrender U.S. leadership in the technology to China, a chamber summary said.

In March Cruz co-wrote an op-ed in The Wall Street Journal with former Sen. Phil Gramm citing the hands-off approach toward the development of the internet in the 1990s by President Bill Clinton.

“In so doing it unleashed extraordinary economic growth and prosperity,” Cruz and Gramm wrote. “The Biden administration, by contrast, is impeding innovation in artificial intelligence with aggressive regulation. This could deny America global leadership in AI and the prosperity that leadership would bring.”

‘Dangerous’ order

An executive order President Joe Biden issued in October 2023 requires multiple agencies to collect public comments and draw up new regulations. It hands responsibilities to the Homeland Security and Commerce departments, including the National Institute of Standards and Technology, which is charged with developing safety standards for the design and deployment of generative AI models.

The order directs the Federal Trade Commission, the Consumer Financial Protection Bureau and the Federal Housing Finance Agency to draw up regulations to address bias and other harms by artificial intelligence systems. The FTC must also examine whether it could enforce fair competition among AI companies using existing authorities.

The 2024 Republican Party platform has labeled the Biden executive order “dangerous,” saying it “hinders AI Innovation, and imposes Radical Leftwing ideas on the development of this technology. In its place, Republicans support AI Development rooted in Free Speech and Human Flourishing.”

To forestall efforts to roll back the executive order, Senate Democrats may try to push through legislation enshrining some aspects into law, said Will Rinehart, a senior fellow at the American Enterprise Institute. He said they’ll likely be successful during the lame-duck session on two measures already approved by the Senate Commerce Committee.

One would require establishment of the National Artificial Intelligence Research Resource, or NAIRR, by the National Science Foundation. Another would establish the AI Safety Institute at the NIST, which would develop voluntary guidelines and testing standards for advanced AI models.

House committees have advanced companion legislation on both subjects. The House bill that would establish the NAIRR would authorize as much as $2.5 billion to fund the entity. Another measure would establish the AI safety center.

Cruz control

If Republicans gain a majority in the Senate without winning the White House, however, they may not be able to “change the regulatory state” by rolling back actions taken by agencies, Rinehart said. In such a scenario, Senate Republicans are more likely to increase scrutiny over regulatory agencies.

Cruz’s opposition to the bipartisan federal data privacy standard aligns with the situation in the House. The measure is backed by Sen. Maria Cantwell, D-Wash., chair of the Senate Commerce Committee, and Rep. Cathy McMorris Rodgers, R-Wash., chair of the House Energy and Commerce Committee. But it has stalled in the House over objections raised by House Republican leadership.

Cruz has said the proposal would give too much authority to the Federal Trade Commission.

“I support Congress — not the FTC or any federal agency — setting a nationwide data privacy standard,” he said at a July hearing on the subject. “Not only is it good for Americans to be empowered with privacy protections, but it’s good for American businesses that desperately need legal certainty given the increasingly complex patchwork of state laws. But our goal shouldn’t be to pass any uniform data privacy standard but the right standard that protects privacy without preventing U.S. technological innovation.”

If Cruz becomes Senate Commerce chair, he would “get another run” at a federal privacy standard, said Michael Petricone, senior vice president at the Consumer Technology Association, a trade group.

Petricone said in an interview that the group hopes any Republican-led federal data privacy bill excludes a private right of action, meaning the ability of individuals to sue tech companies over the issue. It’s a right provided by California’s privacy law but is opposed by tech companies and several Republican lawmakers.

“We would hope also that it would be quite clearly preemptive,” meaning it overrules state privacy standards in favor of a national one, he said.

Cruz has supported narrowly tailored bills, voting in favor of two kids online safety measures that passed the Senate in July in a 91-3 vote, but has opposed a measure to restore spectrum auction authority to the Federal Communications Commission. Cruz said Senate Democrats have sought to use auction proceeds to fund a Biden administration program to subsidize high-speed internet to certain households across the country.

Cruz proposed a spectrum bill with Senate Minority Whip John Thune, R-S.D., that is considered more industry-friendly and also would refrain from spending auction proceeds on restoring rural broadband subsidies that ran out in May.

After the elections, Republicans and Democrats are likely to continue clashing over Section 230 social media content moderation limits — a provision in U.S. law that shields online companies from lawsuits relating to content produced by individual users, Turner Lee said.

Republicans say social media companies have used that provision to censor conservative speech; Democrats say the companies have used it to allow hate speech on their platforms.

“I think there will be further confusion when it comes to Big Tech that will largely be driven by ideological preference,” in a Republican-led Senate, Turner Lee said. “Obviously there will be more discussion on conservative censorship.”