Nikhil Sud on a Biden Administration's Impact on Tech Policy in India
Read the original article via MediaNama here.
By Nikhil Sud
Though a Biden administration may not have obvious or immediate implications for tech policy in India, several issues are worth watching closely for potential nuanced, non-obvious, sometimes indirect, and often significant implications that could take shape over time. Some of these are discussed below.
Given the recent breakdown of the EU-US Privacy Shield, a Biden administration may work with the EU to help reinstate free data-flows between the two regions. This effort could prompt similar US efforts to constructively work with Indian policymakers toward tempering India’s emerging data localisation requirements, beyond the softening that occurred last year, such that they ensure free data flows while respecting the Indian government’s goals such as data privacy and law enforcement access to data.
However, such potential efforts from a Biden administration will likely not comprise a major change in the US’ stance on this issue because even the Trump administration reportedly quite consistently sought to work with Indian policymakers toward tempering India’s data localisation requirements. That said, Indian policymakers may and should consider now being more open to views from the US on this issue, given India’s praiseworthy and increasing interest in interoperability on data flow issues.
Data protection more generally
The Trump administration was reportedly not particularly vocal on India’s emerging data protection rules more generally (unlike on data localisation rules, which form a subset of data protection rules), even though American industry was and has been. That may not change under a Biden administration immediately.
However, the US has been developing a federal privacy law. Although that effort may not see much progress quickly in a Biden administration despite substantial momentum last year, when the effort does resume momentum, American voices including government and industry could use that effort as a basis for seeking discussions with Indian policymakers regarding shaping India’s data protection rules such that they are not so stringent that they hinder innovation, especially if the upcoming US federal law could have a similar impact in the US by overriding some of the stringent requirements of California’s data protection law.
Of course, because it may be a while before the US makes substantial progress on its federal law and potentially seeks such discussions with Indian policymakers, India’s personal data protection law may be finalised before that. In that case, input from the US will likely not be able to amend the law but could impact (if Indian policymakers are open to US input) the supplementary rules that India’s upcoming Data Protection Authority and other government bodies might continually promulgate.
Notably, the powers India’s draft law provides the Indian government to access and use personal data have been a key concern among various stakeholders including, but not limited to, American industry. The EU-US Privacy Shield’s breakdown, based on the EU’s view that American surveillance rules are too intrusive, likely tempered American stakeholders’ (industry’s and the government’s) ability to argue for less surveillance under the Indian draft law. That ability may be bolstered if a Biden administration restores the EU-US Privacy Shield, or develops a similar agreement, by (among other things) addressing the EU’s concerns regarding US surveillance laws.
Per public commentary, a Biden administration could seek to align to some degree with Europe on competition law and policy. Because the push for enhanced antitrust scrutiny of tech companies already appears to enjoy significant and bipartisan support in the US (even though the reasons for this push may differ somewhat on the two sides of the political aisle), and because Europe has generally been highly interventionist on competition issues (more than the US and including in relation to unilateral conduct), the US’ potential alignment with Europe could give the competition movement more teeth in both regions. Importantly, it could also do so around the world, including in India, given the US’ and Europe’s enormous formal and informal precedent setting power.
In fact, Indian policymakers and regulators tend to look to Europe for guidance on competition issues but despite Europe’s interventionist approach, India has so far commendably remained generally restrained in tech-related competition law enforcement, striving to intervene only when there is concrete evidence of competitive harm. That approach is praiseworthy and consistent with the approach the US has until recently adopted. And generally speaking, India seeking consistency with a US approach on competition is logical (despite India’s conventional reliance on Europe for precedent) given that India’s tech-related competitive landscape and ambitions are far closer to the US’ than to Europe’s. However, the US becoming more interventionist and potentially seeking to align with the highly interventionist Europe could mean changes in the American tech competitive landscape and ambitions, likely undermining the logic behind India seeking consistency with the US on competition. It would also, of course, mean that pursuing consistency with the US may no longer encourage restraint.
The US’ growing scrutiny of competition matters — and the amplified scrutiny that could result from a potential US alignment with Europe — could make not just Indian competition law/policy proceedings more interventionist, but also Indian policy initiatives that indirectly relate to competition. For example, India’s Non-Personal Data (NPD) framework relies in large part on competition law reasoning. Although the framework is an excellent step toward using data for social good, the competition law reasoning underlying it is flawed and overly interventionist (as discussed in detail here). Indian policymakers should resist being inspired to cement that reasoning by the developments in the US (and Europe).
Notably, however, the US’ potential efforts to align to a degree with Europe on competition, and/or the competition scrutiny resulting from that alignment, could be tempered by political factors, such as the US’ potential resistance if Europe focuses disproportionately aggressively on American companies than on other companies. They could also be tempered by legal factors: the US and Europe have so far represented arguably fundamentally distinct visions of competition law, sometimes explicitly and sometimes implicitly, and including in connection with unilateral conduct. American legal experts could seek vociferously to prevent the US adopting what they believe are archaic and harmful “big is bad” notions of competition.
Fortunately, increased competition scrutiny in the US, including through some potential US-Europe alignment, will likely not mean a move toward structural remedies in unilateral conduct cases, despite some recent political statements to that effect, especially because even the highly interventionist Europe appears to have commendably recognised that structural remedies are not ideal for unilateral conduct. India appears to have so far demonstrated a similar praiseworthy understanding, and should remain steadfast in it, regardless of what happens in other regions. Even though last year’s Report by the Competition Law Committee constituted by India’s Ministry of Corporate Affairs stopped short of expressly cautioning against structural remedies for unilateral conduct, such remedies for unilateral conduct can obliterate efficiencies, are unnecessary, and are difficult to enforce.
Separately, a Biden administration’s approach to competition could help mitigate the convergence of speech issues with competition issues, a convergence that appears to have gained momentum over the past couple of years and one that is arguably tenuous (much like convergences between competition and other matters including consumer protection), unless a clear link to competition can be established. Illustratively and sensibly, even as this convergence gained momentum, officials in the US sought to, in parallel, address speech concerns through speech laws and regulations. This convergence in the US created a likelihood of a similar convergence emerging in other regions including India, given the US’ significant precedent setting power, but it did not appear, and a Biden administration could reduce that likelihood.
India’s proposed amendments to intermediary liability rules could comprise significant governmental overreach in regulating content on technology platforms (as discussed here). Indian policymakers developing these rules should resist being emboldened by the US’ efforts against Section 230 of the US Communication Decency Act, recognizing that the issues and context in the US might be different from those in India, and there is no one-size-fits-all approach.
For example, and importantly, the Trump administration’s efforts against Section 230 appear to aim at reducing content regulation. In the eyes of Indian policymakers, that critical difference between the Trump administration’s efforts and India’s amendments should not be blurred or outweighed by the similarities, such as both being government attempts to help shape platforms’ decisions regarding content, or that both may be designed to promote what a government views as pro-nation content.
It is unclear how a Biden administration may proceed on Section 230. Biden has at least once strongly criticised Section 230, though briefly, and for letting platforms post objectionable content — the opposite of the Trump administration’s reasoning, which was that Section 230 lets platforms censor too much. This difference in Biden’s/the Democrats’ concern with Section 230 on the one hand and the Republicans’ concern with Section 230 on the other could hinder efforts against Section 230. However, if a Biden administration does proceed with efforts against Section 230, Indian policymakers should remain steadfast in not being emboldened by such efforts, even if the rationale for these efforts ends up being that Section 230 does not allow enough content regulation. Though that rationale might align (at least partly) with the reasoning behind India’s amendments, the context and issues in both countries are different, and what may be suitable for one country may not be suitable to another. Further, India’s amendments are already extremely stringent (and likely overly so as discussed above), rendering it unnecessary and potentially damaging to amplify those efforts by citing efforts against Section 230.
Nikhil Sud serves as Regulatory Affairs Specialist at the Albright Stonebridge Group. He is a lawyer by training and specialises in legal and policy issues relating to technology. Views expressed are personal and do not constitute legal advice.