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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.

 
 
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