And with one stroke, Trump killed the Era of Slacktivism

Tech policy under the Donald: He's got a pen and a phone, too

Analysis No wonder America’s biggest lobbyist, Google, has been so frantic to drive through its agenda this year.

Whether it was making an audacious landgrab for the TV industry, locking the Copyright chief out of her office, stopping ISPs from doing what Google does with your personal data, or taking the songs away from America’s songwriters, the administration has been busy moving the goalposts where Silicon Valley wants them.

Now President-elect Trump is set to consign Obama’s legacy to history with a stroke of a pen. Don’t be surprised, though. Repealing a range of initiatives from “net neutrality” to spectrum policy could not be easier. It will only take a few seconds.

That’s because of what Obama has set in motion that was enacted by Executive Order (EO), Presidential Memorandum (PM), or by Imperial patronage. He couldn’t get what he wanted into legislation through Congress, so set about doing it by other, potentially less durable means.

Obama lost Democratic control of the House of Representatives after the 2010 election cycle, and failed to regain it in 2012. When asked what he’d do as a lame duck president in January 2014, Obama famously replied, “I’ve got a pen, and I’ve got a phone.” What he meant was that he would aggressively use the power of Executive Order, which is basically an administrative guideline, to bend the state to his will.

In numbers, Obama didn’t create more Orders than anyone else. In June, the White House boasted on Twitter it had actually signed fewer EOs than any two-term President since Grant (1869-1877). But that doesn’t tell the full story. The Mercatus Center argued that Obama’s EOs were much more bossy than anyone else’s: they used legally binding language, like “shall” and “must.”

Obama also issued Presidential Memoranda, and much of the time, leaned on cronies. Much of Obama’s foreign policy was enacted through orders and memos.

The problem with this approach is that nothing sticks. Incoming Presidents typically set about ripping up their predecessors’ EOs. Obama himself ripped up his predecessors’ EOs on stem cell research, torture, and trade unions, W’s former scriptwriter Marc Thiessen pointed out here this week. Trump has promised to “cancel every unconstitutional executive action, memorandum and order issued by President Obama” the day he takes office.

Almost all of the administration’s tech policy covered has been undertaken by Presidential cronies, rather than EOs or PMs. After one of Obama’s biggest fundraisers, Tom Wheeler, was eased into the telco watchdog the FCC, the agency continually had to second guess what the President’s Office wanted.

If the President wanted Class II reclassification of the internet so it could be regulated using the sweeping laws designed to regulate a phone service – something even Google was nervous about asking for – then Wheeler knew it was his job to deliver. Even if that meant Wheeler had to rip up the many months of work the FCC had spent on a bipartisan consensus approach to internet regulation. Class II reclassification thrilled the slacktivist base, but a hostile President will sweep it away before the Supreme Court has a chance to examine it.

“The lame-duck president can hardly complain. If you rule by executive fiat, then you should not be surprised if the next executive undoes your fiats,” Thiessen wrote, barely containing his glee.

The problem with Silicon Valley’s agenda is that almost none of it has any popular support. People want more control over their own photos, words and music when dealing with a giant content harvester like Facebook, not less. Silicon Valley wants those rights weakened, and mobilizes an online mob when Congress threatens to strengthen them.

Net neutrality has always been more of a fashion for the urban slacktivist than a deep grassroots concern in the heartlands. “Adopt a cause,” Ted Dziuba wrote here in 2008, characterizing net neutrality, fairly accurately, as a corporate welfare issue disguised as a bogus civil rights movement. Perhaps the only areas where the public agrees with one of the causes espoused by Silicon Valley and the many non-governmental organizations it funds are privacy and mass surveillance.

So a Republican Congress will now re-examine the Communications Act and battle over spectrum auctions and privacy, and culminate in new and durable laws. Google critic and telco-friendly analyst Scott Cleland has a useful list of what to expect from a Trump FCC here.

But this is not a bad thing.

Obama can happily retire and play at being a VC – a thank-you from Silicon Valley (or he could teach kids to code?). But for digital activists, some tough choices lie ahead. Some causes they’ve adopted are so out of touch with reality, they need to be ditched.

The US has a cozy oligopoly of telecom providers, but Class II was never going to result in a more competitive market. Better broadband could be a grassroots cause: the kind of organized direct consumer action I’ve suggested before, tapping into the aggressive power of elected State Attorneys. A new kind of political conduct and strategy is needed.

A more confident political left that believes in achieving lasting change through political persuasion, alliances, and building popular support has been MIA in recent years. Activists have become politically emasculated, preferring to rely on hacks: either court victories delivered by activist judges, or the president himself, stepping in to save the day, as a kind of deus ex machina. It can no longer rely on the latter.

Whether “Digital Millenials” can remember how to talk to the rest of the United States remains to be seen. People who sneer about “flyover states” don’t get very far when the “flyovers” don’t need to listen. ®

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