Supreme Court ruling could hurt government efforts to rein in big tech


The Supreme Court’s latest ruling on climate change could set back efforts by federal agencies to rein in the tech industry, which has remained largely unregulated for decades as the government tries to catch up with changes brought on by the internet.

Lina Khan

In the 6-3 ruling that was narrowly tailored to the Environmental Protection Agency, the court ruled Thursday that the EPA does not have broad authority to reduce power plant emissions that contribute to global warming. . Precedent is generally expected to invite challenges to other rules set by government agencies.

“Every agency is going to face new hurdles as a result of this puzzling decision,” said Alexandra Givens, president and CEO of the Center for Democracy and Technology, a Washington-based nonprofit. “But I hope the agencies will continue to do their job and move forward.”

The Federal Trade Commission, in particular, has pursued an aggressive agenda on consumer protections, data privacy and competition in the tech industry under a leader named last year by President Biden.

Biden’s picks for the five-member Federal Communications Commission also seek to strengthen “net neutrality” protections prohibiting internet service providers from slowing down or blocking access to websites and apps. who do not pay for a premium service.

A former chief technologist for the FTC under President Donald Trump’s administration said the decision would likely cause some fear among attorneys for the FTC and other federal agencies about how far they can go in the process. development of new rules affecting businesses.

The court “essentially said that when it comes to major policy changes that can transform entire sectors of the economy, Congress must make those choices, not the agencies,” said Neil Chilson, who is now a Stand member. Together, with libertarian tendencies, founded by billionaire industrialist Charles Koch.

Givens disagreed, arguing that many agencies, especially the FTC, have clear authority and should be able to resist lawsuits inspired by the EPA’s decision. She noted that Chief Justice John Roberts, who wrote the opinion, repeatedly described it as an “extraordinary” situation.

Givens is among technology advocates calling on Congress to act urgently to pass laws protecting digital privacy and other technology issues. But she said laws typically sit on the books for decades, and it’s unrealistic to expect Congress to intervene on every new technical development that challenges an agency’s mandate.

“We need a democratic system where Congress can empower expert agencies to deal with issues as they arise, even when those issues are unforeseen,” she said. “The government literally cannot work with Congress legislating at every turn.”

Empowered by Congress in the 1970s to combat “unfair or deceptive” business practices, the FTC was at the forefront of Biden’s government mandate to promote competition in certain industries, including big tech, health care and agriculture. A range of targets include hearing aid prices, airline baggage fees, and “Product of USA” labels on food.

Under President Lina Khan, the FTC has also widened the door to more active drafting of new regulations in what critics say is a broader interpretation of the agency’s legal authority. The move could face serious legal challenges following the High Court ruling. The decision could challenge the agency’s regulatory agenda, causing it to either err on the side of caution or face tougher and more costly legal challenges.

Khan “hasn’t really been someone who pursues soft measures, so this may be a doomed approach to torpedoes,” Chilson said.

Ethan Zuckerman, an internet policy expert at the University of Massachusetts, said it would be difficult to gauge the court’s potential impact on existing technology regulation. That’s partly because “there just isn’t a whole lot of tech regulation to undo,” he said.

He said one target could be the Consumer Financial Protection Bureau, “a pet peeve for many conservatives.” Big companies such as Facebook’s parent company Meta could also seek tough enforcement action over the notion that federal agencies weren’t explicitly allowed to regulate social media.

“We are in uncharted territory, with a court taking a wrecking ball and seemingly determined to implement as many right-wing priorities as possible as soon as possible,” Zuckerman said.

The decision could dampen the appetite of agencies like the FTC to act to limit the damage caused by artificial intelligence and other new technologies. This might have less effect on new rules that are more clearly within the domain of the agency imposing them.

Michael Brooks, chief counsel for the nonprofit Center for Auto Safety, said the ruling is unlikely to change the government’s ability to regulate auto safety or autonomous vehicles, though it does open the door to legal challenges. .

For example, the National Highway Traffic Safety Administration clearly has the authority to regulate automobile safety from a 1966 Motor Vehicle Safety Act, Brooks said.

“As long as the rules they make are about the safety of the vehicle and not anything outside of their authority, as long as it’s related to safety, I don’t see how a court could get around the safety law. ,” he said.

Unlike the EPA, an agency with authority granted by multiple complex statutes, “NHTSA’s authority is so clear,” Brooks said.

NHTSA could get in trouble if it strays too far from safety regulation. For example, if he enacted regulations aimed at diverting buyers from SUVs to more fuel-efficient cars, that could be reversed, he said. But the agency has always stuck to its mission of regulating car safety with some authority over fuel economy, he said.

However, it’s possible that a company like Tesla, which has tested the limits of NHTSA’s powers, could sue and win due to an unpredictable Supreme Court, Brooks said.

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