Ruling May Hurt Gov't Efforts on Tech 07/03 08:45
(AP) -- The Supreme Court's latest climate change ruling could dampen
efforts by federal agencies to rein in the tech industry, which went largely
unregulated for decades as the government tried to catch up to changes wrought
by the internet.
In the 6-3 decision 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.
The precedent is widely expected to invite challenges of other rules set by
government agencies.
"Every agency is going to face new hurdles in the wake of this confusing
decision," said Alexandra Givens, the president and CEO of the Center for
Democracy and Technology, a Washington-based digital rights nonprofit. "But
hopefully the agencies will continue doing their jobs and push forward."
The Federal Trade Commission, in particular, has been pursuing an aggressive
agenda in consumer protection, data privacy and tech industry competition under
a leader appointed last year by President Joe Biden.
Biden's picks for the five-member Federal Communications Commission have
also been pursuing stronger "net neutrality" protections banning internet
providers from slowing down or blocking access to websites and applications
that don't pay for premium service.
A former chief technologist at the FTC during President Donald Trump's
administration said the ruling is likely to instill some fear in lawyers at the
FTC and other federal agencies about how far they can go in making new rules
affecting businesses.
The court "basically said when it comes to major policy changes that can
transform entire sectors of the economy, Congress has to make those choices,
not agencies," said Neil Chilson, who is now a fellow at libertarian-leaning
Stand Together, founded by the billionaire industrialist Charles Koch.
Givens disagreed, arguing that many agencies, especially the FTC, have clear
authority and should be able to withstand lawsuits inspired by the EPA
decision. She noted that Chief Justice John Roberts, who wrote the opinion,
repeatedly described it as an "extraordinary" situation.
Givens is among the tech advocates calling for Congress to act with urgency
to make laws protecting digital privacy and other tech matters. But she said
laws typically stay on the books for decades, and it's unrealistic to expect
Congress to weigh in on every new technical development that questions an
agency's mandate.
"We need a democratic system where Congress can give expert agencies the
power to address issues when they arise, even when those issues are
unforeseen," she said. "The government literally can't work with Congress
legislating every twist and turn."
Empowered by Congress in the 1970s to tackle "unfair or deceptive" business
practices, the FTC has been in the vanguard of Biden's government-wide mandate
to promote competition in some industries, including Big Tech, health care and
agriculture. A panoply of targets include hearing aid prices, airline baggage
fees and "product of USA" labels on food.
Under Chair Lina Khan, the FTC also has widened the door to more actively
writing new regulations in what critics say is a broader interpretation of the
agency's legal authority. That initiative could run into stiff legal challenges
in the wake of the high court decision. The ruling could call into question the
agency's regulatory agenda -- leading it to either tread more cautiously or
face tougher and more expensive legal challenges.
Khan "hasn't really been someone who pursues soft measures, so it may be a
damn-the-torpedoes approach," Chilson said.
University of Massachusetts internet policy expert Ethan Zuckerman said it
would be hard to gauge any potential impact of the court's ruling on existing
tech regulation. That's partly because "there's just not that much tech
regulation to undo," he said.
He said one target could be the Consumer Financial Protection Bureau, "a
bte noire for many conservatives." Big companies such as Facebook parent Meta
could also potentially appeal tough enforcement actions on the idea that
federal agencies weren't explicitly authorized to regulate social media.
"We're in uncharted territory, with a court that's taking a wrecking ball to
precedent and seems hell-bent on implementing as many right-wing priorities as
possible in the shortest possible time," Zuckerman said.
The ruling could dampen the appetite for agencies like the FTC to act to
limit harm from artificial intelligence and other new technologies. It could
have less effect on new rules that are more clearly in the realm of the agency
imposing them.
Michael Brooks, chief counsel for the nonprofit Center for Auto Safety, said
the ruling isn't likely to change the government's ability to regulate auto
safety or self-driving vehicles, although it does open the door to court
challenges.
For instance, the National Highway Traffic Safety Administration has clear
authority to regulate auto safety from a 1966 motor vehicle safety law, Brooks
said.
"As long as the rules they are issuing pertain to the safety of the vehicle
and not anything that's outside of their authority, as long as it's related to
safety, I don't see how a court could do an end run around the safety act," he
said.
Unlike the EPA, an agency with authority granted by multiple, complex laws,
NHTSA's "authority is just so crystal clear," Brooks said.
NHTSA could have problems if it strayed too far from regulating safety. For
example, if it enacted regulations aimed to shift buyers away from SUVs to more
fuel-efficient cars, that might be struck down, he said. But the agency has
historically stuck to its mission of regulating auto safety with some authority
on fuel economy, he said.
However, it's possible that a company such as Tesla, which has tested the
limits of NHTSA's powers, could sue and win due to an unpredictable Supreme
Court, Brooks said.
