⏩ What a Biden presidency will mean for tech law

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This week: Joe Biden has several tech-related priorities, and affirmative action is back in the courtroom. Plus, a rundown of important legal reforms approved by voters last week.

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🇺🇸 Joe Biden vs. the tech industry?

With news cycles changing every day and a seemingly unlimited amount of partisan bickering, it’s nearly impossible to forecast what lies in store for the presidency of Joe Biden. The one exception may be tech. 

The biggest tech companies are likely to endure a rocky four years, while average consumers may see a more user-friendly internet.

  • Brace yourself for more antitrust: According to The New York Times, Biden is expected to continue pursuing the antitrust case against Google while also exploring similar legal moves for Apple, Facebook and Amazon. The Trump administration had already been investigating Apple and Amazon. 

  • A staff of tech regulators: Biden’s campaign received input from hundreds of current and former tech employees. One of his campaign’s key staff members is Bruce Reed, who crafted a landmark 2018 California law regarding the online collection of personal information.   

  • A return to net neutrality: Biden has expressed interest in restoring net neutrality, which would prohibit internet companies from creating fast lanes and slow lanes for internet traffic. In a similar vein, he has promised to expand broadband in rural and underserved communities by using billions in federal funding.  

But Biden’s biggest tech concern appears to be misinformation

On the campaign trail, he consistently attacked social media giants for doing little to crack down on the spread of false information and hate speech. A campaign spokesperson said, “Many technology giants and their executives have not only abused their power, but misled the American people, damaged our democracy and evaded any form of responsibility. That ends with a President Biden.”    

The Verdict

With Republicans also supporting antitrust actions and new regulations for internet companies (remember Section 230, everyone?!), tech-related policy presents the rare bipartisan issue and nearly guarantees Biden will enact change in the tech world. And despite a fluid four years ahead, Silicon Valley executives and employees appear ready to back the president-elect. They overwhelmingly favored him in donations during the 2020 election cycle


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🙌 The legal reform candidates and issues that won last week

Last week wasn’t all Biden and Trump and Four Seasons Total Landscaping (it just seemed that way!). Several issues related to the law and criminal justice were on the ballot. Here’s a rundown of some key results:

Prop 22 in California: Voters approved a proposition negating an earlier law that essentially gave independent contractors the rights of full-time employees. Uber and Lyft are rejoicing and hoping other states follow suit.

Legal marijuana all over the place: Weed was by far the biggest winner in 2020. A vast majority of citizens voted to legalize it in Montana, South Dakota, New Jersey and Arizona. That brings the total of marijuana-friendly states to 15.  

Decriminalized hard drugs in Oregon: People who possess small amounts of drugs like LSD, meth and heroin will no longer face jail time in Oregon. Voters approved a measure that gives drug users the option of paying a fine or attending an addiction recovery center. 

Police oversight and criminal justice reform: Voters in cities such as Pittsburgh, San Diego and San Francisco voted to either expand or create civilian oversight boards and commissions for police departments. TIME has a rundown of various criminal justice reform victories and losses. And the ABA Journal notes that reform-minded prosecutors won in Texas, Michigan, Florida and elsewhere.


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👩🏽‍⚖️ Affirmative action is in court yet again 

Doesn’t it seem like Abigail Fisher v. University of Texas happened just yesterday? Or the Harvard Admissions case

On the heels of those stories, another major affirmative action case is hitting the courts, this time involving the University of North Carolina

  • The case, which started in a federal courtroom Monday, shares similarities with past legal disputes: The lawsuit accuses UNC of favoring Black and Hispanic applicants over white and Asian applicants. It was brought forth by Students for Fair Admissions, the conservative activist-backed group that spearheaded the Fisher case and the Harvard case.  

  • But there are key differences: Students for Fair Admissions argues UNC makes race too heavy a factor in its admissions process, almost guaranteeing the acceptance of nonwhite students. In the Harvard case, it argued Asian-American applicants were held to higher standards than others.

  • UNC countered that it has an individualized admissions process: University officials say they do not have race quotas in their admissions and many students do not list their race. For 40-some years, the Supreme Court has held diversity can be a factor in the admissions process, but racial quotas are not allowed. 

The Verdict

Whatever the decision in the North Carolina case, it will be appealed as far as possible. The same is true for the Harvard case, which was argued at the federal appeals level in September after a district court sided with Harvard in February. And Students for Fair Admissions has another lawsuit in the works against the University of Texas.  

In other words, the Supreme Court, with a 6-3 conservative majority, will likely have its pick of an affirmative action dispute in the relatively near future. 


What else we’re forwarding

The FTC just wrapped up an investigation of Zoom: Everybody’s most-used app during 2020 made a settlement with the FTC regarding a claim it didn’t live up to advertised privacy standards. As part of the settlement, Zoom will have to undergo frequent third-party security assessments for the next 20 years.  

Biden’s law prof dishes on his former student: Many lawyers have become presidents, but almost all of them went to T-14 law schools. Not Joe Biden. He went to Syracuse University College of Law, where he graduated 75th out of 86 students. Yet one professor had a great feeling about his “presence”: “I thought he would go on to do something very important, and guess what? I was right.”


End Note

As always, if you’re enjoying the FORWARD GC, I’d love it if you shared it with a colleague or two. You can send them here to sign up or just forward them this email. I try to make it one of the best emails you get each week, and hope you’re enjoying it.

And should you come across any interesting legal news this week, send it my way!

Until next week,

Raad

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