President Donald Trump’s ban on visas for highly skilled immigrants has forced Silicon Valley companies into a rock-and-hard-place scenario where they must choose between an essential group of employees and a fundamental legal protection. In facing the double threat, the choice, though difficult and clouded with political bluster, is clear.
Of the two, the visa prohibition is the greater threat. Here’s why: Undercutting social media’s legal protections may result in a temporary reformation of the tech industry, one that will take shape in litigation to come; on the other hand, the loss of the gifted people who stand to build the networks of the future will cause permanent damage to Silicon Valley.
The president announced an executive order June 22 that would suspend until the end of 2020 any new H-1B visas for highly skilled workers, visas for spouses, and visas that allow companies to transfer current international employees to their offices in the U.S. The agency that doles visas out might go bankrupt, too.
At the same time as Trump dams a vital river of recruitment, he’s squeezing the technology industry with another executive order, one that calls for “new regulations” to replace Section 230 of the 1996 Communications Decency Act, which protects tech companies from lawsuits over what their users post.
The statute establishes social media companies and other online content hosts as not legally liable for what their users post, though they’re still able to moderate and remove objectionable content—newsstands rather than newspapers. If Twitter were liable for every time a rude fake cow badmouthed Rep. Devin Nunes (R-CA), the company would have gone bankrupt a decade ago. Lately, though, Republicans have brandished the possible abolition of that protection to cow the companies, all the while braying bad faith accusations about bias against conservative viewpoints.
Both orders seemed capricious and unprompted. Why would Trump cut off a pipeline to talent that wasn’t broken, and why upend so many lives unprovoked? Why undermine Twitter, his most effective megaphone?
Whether Trump envisioned a pressure campaign or not, the pincer of these threats leaves the tech giants stuck between two terrible outcomes. If they don’t push back against Trump’s immigration order, they stand to lose workers who have made their businesses into the most valuable in the world, and they will appear weak to their current H-1B employees. If they do fight, Trump may well tell Attorney General William Barr to set them legally aflame.
These companies have strived to thread the needle of calls for resistance from their employees and ingratiating White House overtures designed to pave policy paths. Facebook CEO Mark Zuckerberg enjoys an occasional glass of wine with Trump and Peter Thiel. Apple CEO Tim Cook has walked a path that entices both sides those for and against Trump to consider him on their team. Even though Amazon is the most adversarial to Trump, with the president willing to cripple the Postal Service to strike at the company, the most fury CEO Jeff Bezos mustered was an Instagram photo of his adopted father, who immigrated to the U.S. from Cuba, an oblique blow at best.
Silicon Valley relies heavily on the H-1B. Tech giants like Apple, Google, and Facebook are thirsty for engineering talent; talented engineers are reciprocally enthusiastic for the well-paying jobs of San Francisco and Seattle. The program is especially important to the technical workers of India, who made up 72 percent of last year’s H-1B grantees. Google hired 7,604 employees on H-1B visas last year, according to the Department of Labor. This specific pass into the United States has offered great benefit: Alphabet CEO Sundar Pichai and Microsoft CEO Satya Nadella were once H-1B recipients themselves. Both said they were personally disappointed by Trump’s actions, as did Apple’s Tim Cook. Facebook, Amazon, and Twitter issued statements calling the order bad policy. (Where is Sergey Brin, who protested against Trump’s travel ban at the San Francisco airport?) Trump said it will protect American citizens from competition for jobs, but the U.S. labor market already does not provide enough technology specialists to satisfy the needs of the country’s corporations. Tech businesses are turning to Canada for more adept employees and more amenable immigration laws.
Trump’s order states that companies found to “silence viewpoints that they dislike” should lose that protection and face penalties, an echo of the disingenuous and unproven argument that social media companies silence Republican views. He’s instructed Barr to draft laws to that effect. Experts and lawmakers, including Sen. Ron Wyden (D-OR), believe the law poses a grave danger to the integrity of online information. If Jack Dorsey, Twitter’s CEO, believes his social network opens itself up to a lawsuit by removing an unhinged tweet that falsely claims masks don’t slow the spread of the new coronavirus, he’s less likely to instruct his moderators to axe the post.
It’s not a given that Trump will follow through with the bite to his bark on chewing up Section 230. It is certain, though, that the halt on H-1B will hobble Silicon Valley’s ability to build, innovate, or even maintain the status quo of its existing empire. Tech companies should fight the president’s action more aggressively.